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Full text of "A practical treatise on the law of evidence : and digest of proofs, in civil and criminal proceedings"

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PRACTICAL TREATISE 



OP THB 



LAW OF EVIDENCE, 



&c. 



VOL. II. 



PiUl<a %9 J«iM» * Uk« J. H 



PRACTICAL TREATISE 



OF THE 



r.AW OF EVIDENCE, 



▲ffO 



DIGEST OF PROOFS, 



iir 



CIVIL AND CRIMINAL PROCEEDINGS, 



THIRD EDITION, 

WITH CONSIDERABLE ALTERATIONS AND ADDITIONS. 



By THOMAS STARKIE, Esq. 

or THB INNER TEMPLE, ONE OP HER MAJESTY'S COUNSEL. 



,-<^: ) ♦'^ 



• • « 



VOL. II. 

ABA MU R 












LONDON: 

V. AND R. STEVENS AND G. S. NORTON, 
{Siuxeuan to the late J. ^ W.T.CLARKE, of Portugal Street,) 

late KootaiUttft ant ^Mii^nii, 

86 AND 80, BELL YARD, LINCOLN'S INN, 
AND A. UILLIKENy DUBLIN. 

MDCCCXLIL 



LAW OF EVIDENCE. 



VOL. II. 



PROOFS ON PARTICULAR ISSUES. 



ABATEMENT. 

npHE proof of the affirmatiye of the issue on a plea in abatement is, from 
the Teiy nature of the plea, usually incumbent on the defendant (a). 
This natural order is subject to inversion, either it seems in respect of the 
form of the issue, according to which the plaintiff takes the burthen of proof 
upon himeelf ; as where the replication to a plea in abatement for non- 
joinder in assumpsit, alleges that the defendant undertook 9olebf to pay (&) ; 
or, which more frequently happens, in consideration of the plaintiff having 
to prove the amount of his damages. In strictness the question as to 
damages does not arise until the issues have been disposed of, and it might 
seem to be more convenient to try the issues first, for if the defendant 
succeed the inquiry as to damages is unnecessary. The course of practice is 
otherwise, and so far as any precise rule can be collected it seems to be tliis, 
that if the amount of damages be in dispute, the plaintiff is entitled to 
begin, although the proof of the issue joined may be incumbent on the 
defendant (c) ; but that if the damages be merely nominal^ or can be ascer- 



(a) See tit. Okdbh of Proof, tuprct^ 
Vol. I. In FowUr y. Cottar, M. & M. 
241, in an actioo on a bill of excbange, 
and the non-joinder of a joint contractor 
pleaded; Lord Tenterden permitted the 
defendant to begin, observing that where 
it appeared by &e record or statement of 
counsel, that there was no dispute about 
the sum to be recovered, the damages being 
either nominal or mere matter of compu- 
tation, then if the affirmative was on the 
defendant, be ought to begin. 

(ft) See Yovmg v. Baimer, 1 £sp. C. 
103. 

(e) Indebitatus assumpsit for goods sold, 

pies non-joinder of others as defendants, 

LordDenman held that the plaintiff was 

entitled to begin, but that the defendant 

mjglit do so if he would admit the amount 

claimed ; Morris v. Loian^ 1 M. & R. 233. 

In Lacon v. Higgins, 3 Starkie's C. 178, 

the defendant having pleaded her coverture 

to an action for goods sold, her counsel were 

permitted by Abbott, L. C. J. to begin, on 

condition of admitting the amount. In 

Moby y. Howard^ 2 Starkie's C. 555, non- 

VOL. II, 



joinder having been pleaded to a declara- 
tion for laying out the plaintiff's money on 
an insufficient security, the same learned 
Judge was of opinion that the plaintiff's 
counsel ought to begin, since it was incum- 
bent on the plaintiff to prove his damages. 
See also Stantfield v. Levy, 3 Starkie's C. 
8; Fowler v. Costar, M. k M. 241. In 
some instances, the question as to beginning 
appears to have been regarded as one for 
the discretion of the court, Burrell v. Ni- 
choUon, 1 M. & R. 304. Bayley, J. at the 
York Summer Assizes 1821, directed that 
the defendant should begin, and that the 
question of damages should, if necessary, 
be tried afterwards. See Young r. Bait' 
ner, 1 Esp. C. 103; Jackson v. Hesketh, 
2 Starkie's C. 518. In the case of Hutch- 
inson v. Femie, 3 M. & W. 305, the court 
intimated that a clear case of erroneous 
direction in this respect, would be a ground 
of new trial. In the case of Stan^ld v. 
Levy above cited, Abbott, L. C. J. held that 
where the plaint^ is allowed to begin, be 
may confine himself to proof of damages, 
and reserve his case in reply to the plea . 

B 



ABATEMENT. 



tained by mere compntation, or are admitted by the defendant on whom the 

proof of the issue lies, he ift entitled to begin (d). 

Plea of ^^ plc^ ^^ abatement, that the defendant made the promise jointly with 

noQjolndev. another, is supported by evidence that the defendant made the promise 

jointly with an infant; for the plaintiff ought to plead and prove that the 

infant has avoided his promise («). Upon a plea that A, and B., assignees 

of C,y a bankrupt, ought to have been joined, it is not sufficient for the 

defendant to prove that they have acted as assignees ; he must prove that 

they were so, either by the production of the assignment, or by proving an 

admission by the plaintiff to that effect (/). A bill delivered by the plaintiff 

for business done for the kisured, the defendant being one, in which he 

debits the defendant with three-sevenths only of the whole amount, is primd 

facie evidence (the defendant having pleaded in abatement) that the action 

was brought to recover his share only (g). 

If the plaintiff contract with the defendant altmef without knowing that 
he hat other partners, proof by the defendant, upon a plea in abatement for 
non-joinder, that he had secret partners, would not be a sufficient defence 
in support of the plea (A). 

Any acts by the defendant, tending to show that he treated the contract 
as several, not joint, are evidence for the plaintiff. Where the defendant 
had written letters to the plaintiff, promising to pay the money in question, 
and without making mention of any partners, Lord Ellenborough, upon issue 
to bar on a plea of non-joinder, held that the evidence was conclusive as to 
separate liability (t.) One signing an instrument in his own name for others 
may frequently be sued alone, although the others may also be liable (A). 



The plaintiff may, on motion, compel tbe 
defendant to give him a particular of the 
places of residence of the alleged oo-part- 
nerH. Taylor v. HafrUf4B.icA.93. The 
plaintiff will fail, If it appear that any other 
than those named in the plea Jointly pro- 
mised. Godson V. Cfoodf 6 Taunt. 587. 

{d) Xoeonv.i^H^^nx, 3 Starkie'sC. 178. 

(e) But a contract by an infant, for goods 
sold to trade with, is absolutely void. 
Thornton v. IHivgunrth, 2 B. & C. 826. 
Oibhs V. JUerrill, 3 Taunt. 307. Where 
one churchwarden sued another for money 
paid for the affairs of the church, it was 
held, on a plea in abatement, that It was 
unnecessary to join the vestrymen who had 
signed a resolution for the repairs, without 
Any intention of beconung responsible, the 
two churchwardens having jointly given 
the orders. Lanchettery. TWifeer, 1 Bing. 
201 . And where one of two chapel wardens 
alone orders goods, it is sufficient to sue 
him alone; for tlie plaintiff knows no one 
but the person who gives him the order. 
Shaw T. Hitlcp, 4 D. & R. 241. See also 
Eaton V. Bell, 5 B. & A. 34. HcT$eley v. 
Bell, 1 Brown's C. C. 101. Amb. 770. 
Sprott V. Powell, 3 Bing. 478. BrooJte 
V. Ouett, 3 Bing. 481. As to the non- 
joinder of defendants in actions against 
carriers, see tit Carriers ; and Brether- 
ton V. Wood, 3 B. & B. 54. Anselly. 
Waterhmae, 2 Chitty, 1. 

(/*) Paifnore v. Boutfield, 1 Starkie's 
C:^296. Bobinson v. Ilenskaw, 4 M. & S. 
475. 



(a) 1 Starkle's C. 296. 

(A) Boot. Chippenden, eor^JA.KeayoB, 
Ch. J. at Westmr. sittings after Hil. T. 
1790, upon a plea in abatement cited In 
Mr. Abbott* s treatise, 92. Baidney v. 
RUehie, 1 Starkie's C. 338. See tit 
Partnership, ir^fra. If a party con- 
tract with two, he may sue them only : if 
after the contract is made he discovers that 
they had a secret partner who had an in- 
terest in the contract, he is at liberty to 
sue the latter jointly with them, but he is 
not bound to do so. Be Mauiort v. 
Saunders, 1 B. & A. 398, overruling Bu- 
bois V. Ludert, 5 Taunt 609. And see 
Afullett V. ^ooilr^ 1 M. & M. C. 88. And see 
tit. Partnership. On a plea in abatement 
in an action for work and labour, of the 
non-joinder of eighteen others, members of 
a joint company, Abbott, L. C. J. held that 
declarations by one of the eighteen, before 
action brought, that he was a shareholder, 
was evidence of the fact for the defendant, 
Clay V. Langslow, 1 M. & M. 45 ; iamen 
qutBre. 

(i) Murray v. SomervUle, 3 Camp. 
99. n. 

(*) See tit Agent. — Bill of Ex- 
change. A promissory note, beginning '^ I 
promise to pay,** was signed by a member 
of a firm for himself and his partners, and 
it was held that he was liable to be sued 
scveraUy. HaU v. Smith, 1 B. & C. 407 ; 
March v. Ward, Peake's C. 130 ; Clarke 
V. Blaekestock, Holt's C. 474 j Sayer v. 
Chayior, 1 Lutw. 696. 



ABATEMENT. 



3 



By the statute 3 & 4 Wm. 4, c. 42, s. 9, to any plea in abatement in any 
court of lawy of the non-joinder of another person, the plaintiff may reply 
that such person has been discharged by bankruptcy and certificate, or 
under an act for the relief of insolvent debtors. 

And by section 10, in all cases where after such plea in abatement, the 
plaintiff shall, without proceeding to trial upon an issue thereon, commence 
another action against the defendant or defendants in the action in which 
such plea in abatement shall have been pleaded, and the person or persons 
named in such plea in abatement as joint contractors, if it shall appear by 
the pleadings in such subsequent action, or on the evidence at the trial 
thereof, that all the original defendants were liable, but that one or more of 
the persons named in such plea in abatement, or any subsequent plea in 
abatement, are not liable as a contracting party or parties, the plaintiff 
shall nevertheless be entitled to judgment, or to a verdict and judgment, as 
the ease may be, against the other defendant or defendants who shall 
appear to be liable ; and every defendant who is not so liable shall have 
judgment, and shall be entitled to his costs against the defendant or defen- 
dants who shall have so pleaded in abatement the non-joinder of such 
person ; provided that any defendant who shall have so pleaded in abate- 
ment, shall be at liberty on the trial to adduce evidence of the liability of 
the defendants named by him in such plea in abatement (Z). 

The plaintiff must be prepared to prove his damages (m). Damages. 

Where a peer is named as a commoner, he niay plead his misnomer in Misnomer, 
abatement, since the title is part of his name, and he ought to be tried by 
his peers only (n) ; but he ought to set forth the writ, &c. upon the plea, 
because it is but a dilatory plea, and must be tried not by the country but 
by the record. But a plea that the defendant is a peeress by marriage must 
be tried by the country, since it involves a question of fact extrinsic of the 
record (o). 

Upon a plea of peerage under letters patent, they must be produced 
under the great seal (p). In Knowles's Case, upon an indictment for mur- 
der, the defendant pleaded that his grandfather was created £arl of Ban- 
bury by letters patent under the great seal of England, which he produced 
in court ; the Attorney-general replied, that on, &c. the defendant petitioned 
the Lords in Parliament to be tried by his peers, and that the Lords dis- 
allowed his claim ; the defendant demurred, and the demurrer was allowed, 
on the ground that the refusal of the Lords could not operate as a judg- 
ment (q). 

If the defendant in a criminal proceeding plead a misnomer, the King may 
reply that he is known by the one name as well as the other (r) ; but in an 
appeal such a replication was not allowed («). 

Upon a plea of misnomer^ where the defendant avers that he was baptized 



(0 See Clay v. Langtlcw^ 1 M. & M. 
C. 46, mpra. 

(m) Weleker y. Le PeUetier, otherwise 
the plaintiff will be entitled to nominal 
damaged only. 

(n) i. tf. In case of Treason or Felony, 
2 Hale, 240. 6 Co. 53. Countess qf 
JtutkmePs Case, 36 H. 6, 46. 

(o) 6 Co. 63. 2 Hale, 240. See Star- 
kie's Crim. PI. 295. 

(p) 2 SaUc. 609. 

{q) Jt. v. Graham, 4 St Tr. 410. See 



the Earl qfStrathmore ▼. the Countess qf 
Strathmore, 2 J. & W. 543. 

(r) 2 Hale, 238. By the statate 7 Q.4, 
c. 64, B. 19, no Indictment or information 
shall be abated by reason of any plea of 
misnomer, or want of addition, or of Wrong 
addition, if the court shall be satisfied by 
affidavit or otherwise of the truth of the 
plea ; and it shall order the indictment or 
information to he amended, &c. 

(«) 1 H. 7, 29. 21 £d. 3,47. 2 Hale, 
238. 

b2 



4 



ABUTTALS — ACCB8SO R Y . 



bj the name of A, B^ he miut give proof of sach baptism, although he was 
not bound so to allege it ; and it is not sufficient to shew that he has always 
been called and known by that name (/). A defendant in either a criminal 
or ciyil proceeding will in general {be concluded in a new action, or upon a 
fresh indictment, as to the name or addition which he has set forth in his 
former plea (u). 
Compe- If in assumpsit the defendent plead in abatement that the promise was 

tency. made jointly with E, F,, the latter will be a competent witness for the plain- 

tiff; for if the plaintiff were to succeed, although the record would prevent 
the plaintiff from recoyering a second time in a joint action, the witness 
would still be liable to an action at the suit of the defendant for contribu- 
tion (x) ; for the record would not be evidence against the latter ; and if the 
plaintiff were to fail, the witness, if a partner, would still be liable to be 
sued by the plaintiff in an action against himself and the former defendant, 
and would be ultimately liable to pay his own share. The witness, if he be 
a partner, is at all events liable to pay his own proportion of the debt(y). 
It seems, however, that E. F. would not have been a competent witness for 
the defendant, in order to prove that he was a joint contractor, without a 
release (2), where he would be liable to contribute towards the costs of the 
action in case the defendant failed. But a release from the defendant would 
at all events make him competent, for then he would not be liable to contri- 
bution ; and it would be his interest that the plaintiff should recover against 
the defendant alone, rather than that he should fail, in which case he might 
still bring a joint action. 

The defendant, upon an indictment for perjury, may prove in bar that the 
action in which the evidence was given, on which the puijury is assigned, 
had abated before the trial of such action, by the death of a co-plaintiff after 
issue joined, no suggestion having been entered on the record pursuant to 
the statute 8 & W. 8, c. 11, s. 6(a). 

ABUTTALS. 5ee TRESPASS. 

ACCEPTANCE. See BILL OF EXCHANGE. 

ACCESS. 5«c BASTARDY. 



Principal 
in Uic flnt 
degree. 



ACCESSORY. 

It will be convenient here to consider the evidence applicable to liotli 
principaU and accetaories. Principals, in cases of felony, are of two degrees. 
A principal in the first degree is the absolute perpetrator of the crime, and 
is either actually present when it is perpetrated, or commits it whilst absent 
by an innocent agent or instrument (b). A principal in the second degree is 



(0 Weleker v. Le Pelletier, 1 Camp. 
470. 8<>e Com. Dig. Abatbmbnt, [F.] 
17. Walden t. Holman^ 6 Mod. 116; 1 
Halk. G. 

*(t<) 2 Hale, 248. See Crim. Pleadings, 
2 Ed. 313. A plea of misnomer is no 
longer allowed in a personal action. 3 & 4 
W. 4y c. 42, s. 11 ; and soc the provision, 
s. 12, as to tlie use of initials. 

(x) L(ird EUenborough seems to have 
been of opinion tliat in this event the 
witncKn would have been in a worse sitna- 
tion tlian lie would have been in had the 
plaintiiT failed, on account of his liability 



to contribute towards the costs of the 
former suit. 

(y) Hudnn v. RMn»ony 4 M. & S. 475 ; 
and see Cottham v. Qoldney, 2 Starkie's 
C. 414. 

(2) Y&ung V. SaimeTy 1 Esp. C. 103; 
and see tlie observations of Lord Ellen- 
borougii, 4 M. Je S. 480, and of Bayley, J. 
lb. 484 ; and see Goodaere v. Breame^ 
Peake*8 C. 174 ; and BiH v. Hood^ 1 Esp. 
C. 20; and see also tit. Interest of 
Witness, and Partner. 

(a) B, v. Cohen^ 1 Starkie*s C. 511. 

(6) Hale, 015, G16. 2 Haw. c. 29, s. 11. 



ACCB980RY. O 

one who 16 present, aiding and abetting the fact to be done (c). An accessory 
brfore the fact is he, that being absent at the time of the felony committedi 
doth yet procure, counsel, or abet another to commit a felony (d). A man 
may therefore be convicted as a principal in the first degree, upon evidence 
that he committed the fact when absent, without the more immediate inter- 
vention of any guilty agent. As where A, persuades B» to drink poison, by 
recommending it as a medicine (e); or where he sends the poison by a third 
person, ignorant of its quality (/) ; or incites a madman to destroy another ; 
or a child to set fire to a house (g). To prove one to be principal in the Pnnciptdia 
second degree, it must be shown yir«/, that he was present when the oifence J>e second 
was committed. But it is not necessary to shew that he was actually stand- p f li^ i. 
ing by, within sight or hearing of the fact ; it is sufficient if he was near he was 
enough to lend his assistance in any manner to the commission of the oifence. present. 
As where one commits a robbery or murder, and another keeps watch or 
gnaid at some convenient distance (h). So if several set out together, or in 
small parties, upon one common design, whether of murder or felony, or for 
any other unlawfiil purpose, and each takes the part assigned to him, some 
to commit the ^t, they are all, in contemplation of .law, present when the 
&ct is committed (t). So, if several come to commit a burglary, and some 
enter, and the rest watch, all are principals (A). So, where a constable's 
assistant attempted to apprehend a number of persons in a house, under a 
warrant for a riot and battery, and fourteen of the rioters issued from the 
house and killed the constable's assistant, it was held that those within the 
house, if they abetted and counselled the riot, were, in law, present^ aiding 
and assisting, as well as those who issued out and actually committed the 
assault five roods from the house (/). And, in general^ if a party be suffi- 
ciently near to encourage the principal in the first degree with the expecta- 
tion of immediate help or assistance in the execution of felony, he is in point 
oi law present. Lord Dacre and others (m) came to steal deer in the park 
of Mr. Pelham ; Ray den, one of the company, killed the keeper in the park, 
the Lord Dacre and the rest of the company being in other parts of the 
park ; and it was held that it was murder in them all, and they died for it. 
So if A. and B. be present, aud consenting to a robbery or burglary, though 
though A. only actually commits the robbery, or actually breaks and enters 
the house, and B. be watching at another place near, or be about a robbery 



(e) Hale, P. C. 616. Formerly he who 
stmck alone was principal, and those who 
irere present, aiding and assisting, were 
accessories, who could not be convicted 
before the attainder of the principal; 
I Hale, P. C. 437. 40 Ass. 25. 40 E. 3. 
Bat it has been long settled, that all pre- 
sent, aiding and abetting, are principals; 
1 Hale, P. C. 437. Plow. 97. Whether 
a person is guilty as a principal in the 
first or second degree, is a question of law, 
R. Y. Royee, 2 Burr. 2076. If several 
persons combine to forge an instrument, 
and each separately executes a part, all are 
principals, though they are not together 
when the work is completed. R. v. Bingley 
and ciher9f 1 Russ. k, H. 446. 

{d) 1 Hale, P. C. 616. Lord Coke, in 
his reading on the Statute West. 1 , c. 14, 
says; the word aid comprehends all per- 
sons coanselling, abettbig, plotting, assent- 
ing, consenting and encouraging to do the 



act, and who are not present when the act 
is done ; for if present, they are principals \ 
2 Inst 182. 

(e) 4 Co. 44. 2 Inst. 183. 

(/) 9 Co. 81. Kelynge, 52, 53. 

{g) Ann Courte^a Case^ Foster, 349. 

{h) Foster, 350. 1 Hale, 637. If two 
steal in a shop whilst a third remains on 
the outside to watch and co-operate, he 
is guilty as a principal R. y. Qogerly 
and other9, 1 Russ. & R. 343. In the 
case of 12. y. Davit and Hallf cited below, 
though the jury found that the prisoner 
Hall was near and ready to lend assistance, 
yet the evidence seems to haye been insuffi- 
cient to warrant the finding. 

(i) Foster, 360. 353. 1 Haw. c. 38. 
1 Hale, P. C. 439. Kel. 111. 

{k) Foster, 350. 1 Hale, P. C. 439. 

(/) 1 Hale, P. C. 462. 

(m) 1 Hale, 439. 443. 245. Fost. 351 

b3 



6 



ACCESSORY. 



hard by, which he effects not, both are robbers and burglars (n). Where 
Hyde and A,y B., C, and D. rode out to rob, but at Hounslow D, parted from 
the company, and rode away to Colbrook, and A,j B, and C. rode towards 
Egham, and about three miles firom Hounslow, Hyde^ A, and B. assaulted a 
man ; but before he was robbed, C. seeing another man coming at a distance, 
before the assault, rode up to him about a bow-shot, or more, from the rest, 
intending either to rob him, or to prevent his coming to assist ; and in his 
absence, Hydcy A, and B. robbed the first man of divers silk stockings, and 
then rode back to C, and they all went to London, and there divided the 
spoil ; it was ruled (according to Lord Hale) upon good advice, ^«f, that2>. 
was not guilty of the robbery, though he rode out with them upon the same 
design, because he left them at Hounslow, and fell not in with them ; it may 
be he repented of the design, at least he pursued it not. Secondly^ that C,y 
though he was not actually present at the robbery, nor at the assault, but 
rode back to secure his company, was guilty as well as Hyde and the two 
others (o). It is otherwise where the party is not sufficiently near to render 
assistance to the principal felons. Where three prisoners were charged with 
feloniously uttering a forged note, &c., and it appeared that one of the pri- 
soners offered the note in payment at Gosport, the other prisoners being 
then waiting at Portsmouth for his return : the whole being in consequence 
of a previously concerted plan, the Judges (after conviction) held, that the 
two latter prisoners were entitled to their acquittal, since they were not 
present when the felony was committed (p). 

In the case of the King v. Stewart and Biehans {q\ it appeared that the 
two prisoners had previously agreed to sell forged notes to James Piatt, a 
witness upon the trial, and that the price had been paid. That after the 
witness had been at the house of the prisoners for the purpose of receiving 
the notes, Stewart and the witness went to a public-house, and that after- 
wards Dickons came and beckoned them out ; Stewart then said to the wit- 
ness, '* You see Ann there, whom you have seen at our house ; she will deliver 
the goods to jou ; I wish you good luck." Dickons, the woman pointed out 
by the prisoner Stewart, within three minutes afterwards delivered the 
forged notes to the witness, and the witness did not know whether the pri- 
soners were or were not in sight when the notes were so delivered, nor 
which way they went. The jury found the prisoners guilty, and stated (the 
question being left to them by the learned Judge), that the delivery of the 
notes by Dickons was in completion of the agreement made by the prisoners, 
and on their account, and not her own. Execution was respited, in order 
that the opinion of the Judges might be taken upon the question ; and all 
the Judges recommended that a pardon should be applied for in respect of 
the particular offence (r). 



(n) 1 Hale, P. C. 537 1 And. 116, 
&e. ; differently reported, Post. 364. Bee 

tit BUROLART. — RaPB. 

(o) 1 Hole, 537. 

(p) R. V. Soarei, and two others, 2 East, 
P. C. 974; and see R. v. Badtioek and 
others, 1 Russ. & R. 249 ; R. v» Kelly, lb. 
4S1 ; JR. y. Morris, lb. 270. In the case 
ofR. T. Davit ^BaU, 1 Rass. &, R. 115, 
the two prisoners came to a town with in- 
tent to utter a fofged note ; they left the 
inn where they hod put up together; 
DeyIs went into a shop and uttered the 



note, and Hall joined him near the place, 
about fifteen or twenty minutes afterwards. 
The jury found that Hall was at the time 
of the uttering sufficiently near and ready 
to render assistance, and found both 
guilty; but the Judges afterwards held 
the conviction of Hall to be improper. 

(q) Coram Garrow, B., Warwick Lent 
Assiz. 1818, and afterwards before the 
Judges, MSS. C. 

(r) See also R, v. Else, 1 R. & R. 
142. 



ACCESSORY. 7 

It must be fikevrn, secandlt/y that he was aiding/ mid abetting {i); which Thatheiras 
words seem to include every species of assistance which one present can aiding and 
give, either in act, or by his assent, and by his encouragement or readiness * ^' 
to further the general purpose {t). For if any one comes for an unlawful 
purpose, although he does not act, he is a principal (u). It is not necessary 
to show that one, indicted as a principal, was present during the whole of 
the transaction; it seems to be sufficient to show him to be present aiding 
and abetting when the offence was consummated, although he was not pre- 
sent at the inception. Where the servants oi A, feloniously removed goods 
in il.'s warehouse, and B, several hours afterwards assisted them in remov- 
ing the goodsyhnn the warehouse, it was held that B, was a principal, since 
it was a contiBuing transaction (or). So, where the servants of Dyer, who 
was the owner of a boat (and had been employed to convey on shore a quan- 
tity of barilla), without the privity of Dyer, separated part of the barilla 
from the rest, and conveyed it to another part of the boat, and concealed it 
under some rope, and Dyer afterwards assisted the others in conveying the 
part so separated from the boat ; it was held, upon the same ground, that 
Dyer was a principal (y). 

Principals, whether in the first or second degree, are usually charged as 
being feloniously present, aiding and abetting (z) ; since where a statute 
creates a new felony, or takes away the benefit of clergy from those guilty 
of an existing felony, under particular circumstances, the offence partakes 
of all the incidents to a felony at common law, and all present aiding and 
abetting are principals, and may be charged as such (a). But where the 
statute by its description includes that party only who does the very act, 
one who is principal in the second degree only ought to be acquitted 
either of the offence generally, or of so much as the particular statute is 
applicable to. 

The allegation, that the prisoner was aiding and edfeiting, implies an eissent 
to the principal act. This assent must be proved either by some act directly 
done in furtherance of the commission of the crime, which manifests the 
assent of the prisoner, as by his keeping watch whilst others in his presence 
break ox>en a house, or by evidence that he was associated with the rest in 
the prosecution of one common illegal object, in the execution and further- 
ance of which the principal crime was committed. If ^4. be present when a 
murder is committed, and takes no part in it, nor endeavours to prevent it, 
and neither apprehends the murderer, nor levies hue and cry after him, and 
the matter be done in private, the circumstances would, it seems, be evidence 
to a jury, of consent and concurrence on his part (6). But here the privacy 



(j) See Lord Coke's exposition of the 
v<nrd aid, 2 lost. 218, uid tupra, 6 ; see 
also Foster, 954; and Minshew, Cowel, 
Skinner, Spefanan, and Dufresne, on the 
meaning of the word abet ; from which it 
appears that instigation alone, withonC 
force, is the sense of the word. 

(f) Post. 350. 2 Haw. c.47. 

(«) 1 Hale, P.C. 374. 443. 

(x) JR. V. Atioell and othert, East, P.C. 
706. But where several broke open a 
warehonse and stole a quantity of butter, 
and carried it along the street thirty yards, 
and then the prisoner joined them, and 
being apprized of the felony, assisted in 
vending the goods; it was held that he 



was but an accessory. B, v. King, Rnss. 
& R. 332. B. 7. M'Makim ^ Smith, lb. 

(y) B. V. Byer and Disting, East, P.C. 
767, per Graham, B. and Le Blanc, J. 

(z) Where aiders and abettors arc men- 
tioned expressly in the statute, the general 
allegation appears to be sufficient; see 
Crim. Pleadings, second edition, 82, S3. 
86. 

(a) See the Coalheaver's case, JiCach, 
76. Staundf. 44. 3 Inst 45. 1 Hnle, 
P.C. 613. Post. 354. B.Y. Midwinter^ 
Sims, Leach, C.C.L. 3d edit. 78. Burr. 
2075. 

(b) Foster, Disc. 3,8. 5. 

b4 



ACCBS80RY. 



Evidence 
against an 
accessory 
before the 
fact. 



and secrecy with which the fact was accompanied would be a strong circum- 
stance ; for if the homicide had been openly committed before witnesses, as 
it frequently is, where it amounts in construction of law to murder, although 
^.'s conduct might be criminal, it would not render him either principal or 
acce8Sory(c). But in case the murder had been committed in prosecution of 
an unlawful design, proof that A. came to assist and carry that designinto exe- 
cution, would be evidence to conyict him as a principal in the second degTee(d) ; 
for in such case the person giving the blow is no more than the instrument by 
which all strike. In such case, however, it would be essential to prove that the 
murder was committed in the prosecution of some specific unlawful design 
in which the prisoner had engaged (e) ; for if the death resulted from the 
particular malice of the individual who inflicted the blow and who took the 
opportunity to revenge himself, the others, who were assembled for a different 
puq)08e, would not be involved in his guilt. Three soldiers went to rob an or- 
chard, two got up a pear-tree, the third watched with a drawn sword, and killed 
the son of the owner, who had collared him ; and it was held, that the latter 
was guilty of murder, but that the two others were innocent, because they 
came to commit a small inconsiderable trespass, and the man was killed upon 
a sudden affray without their knowledge. But Holt, C. J. said that it would 
have been otherwise, ''if they had all come thither with a general resolution 
against all opposers," which would have proved that the murder was com- 
mitted in prosecution of their original purpose (/*). So where A. beat a 
constable in execution of his office, and being parted from him desisted, and 
B,y a friend of A,, rushed in and killed the constable, A. not having been 
engaged after they were parted, it was held to be murder in B., but that A. 
was innocent, since there was no previous agreement to obstruct the constable 
in the execution of his office (^). A general resolution against all opposers, 
which can be proved either to have been expressly entered into, or which can 
be inferred from circumstances, as from the number, arms, or behaviour of 
the parties at or before the scene of action, is strong evidence in cases of 
this nature (A), and shews, when substantiated, that every one present, in the 
eye of the law, when the offence is committed^ is guilty as a principal (t). 
Where, however, A,, B, and C set out with intent to rob on the highway, and 
A, and B. upon the same day commit a robbery, C may show in defence that 
he had previously abandoned the design, and separated himself from the party, 
and that there was not, when the offence was committed, any engagement or 
reasonable expectation of mutual support and defence to affect him (k). So if 
several set out to commit a felony, but being alarmed, run different ways, and 
one to avoid capture, maims his pursuer, the rest are not principals (2). 

An accessory before the fact may be tried either after the conviction of 
the principal felon cr at the same time with him, or may be indicted and 
convicted of a substantive felony, whether the principal felon has or has not 



(e) Dalt.395. Staundf. 40. Post. Disc. 

(d) Post. Disc. 3, s. 6. Kel. 1 16. 

\e) Post Disc. 3, s. 7. 

(/) Ibid. 

{g) Per Holt and Rokeby, J«. Hertford 
A8». Post Disc. 3, 8. 7 ; see also Plum" 
t4ier*» Owe, lb. 

( h ) Post. Di»c. 3, 8. 8. 

(i) The cases of liord Dacre and Pud- 
teyy cited above, were decided on the sumo 
principle ; the offences of which they stood 



charged were committed far out of their 
sight asd hearing, yet both were holden 
to be present, it was sufficient that at 
the instant the offences were committed by 
some of the same party, and upon the 
same pursuit, and under the same engage- 
ment and expectation of. mutual defence 
with those who di<l thu fact. Post. 354. 

(A) Post. Disc. 3, 8. 8. 

(/) R. V. White and another, Russell 
k, Ry. 9. 



ACCESSORY. 9 

been pTevioiisly conTicted (m). If the principal has been previonsly conTieted, 
the oonTiction may be proved by the record properly authenticated (n), which 
will be prkttdfade evidence to prove the guilt of the principal (a), -whether 
the indictment allege the guilt of the principal expressly {p)y or, as is the 
more usual course, recites the record of conviction {q)» In either case the 
prisoner mayinnst on every matter both of fact and of law to controvert the 
guilt of the principal (r)y for the accessory is considered as partieeps in Ute{8). 
As against an accessory before the fact, the general allegation must next be 
proved, that he did feloniously and maliciously incite, move, procure, aid, 
abet, counsel, hire, and command the principal to commit the felony (/). 
Proof sufficient to satisfy this allegation imports evidence of the knowledge 
and assent of the prisoner to the commission of the felony, that he at least 
instigated and incited the principal to commit the crime. With respect to 
the measure of the incitement and force of persuasion used, no rule is laid 
down ; that it was sufficient to effectuate the evil purpose is proved by the 
result. In principle, it seems that any degree of direct incitement with the 
actual intent to procure the consummation of the illegal object, is sufficient 
to cQustitute the guilt of the accessory ; and therefore that it is unnecessary 
to show that the crime was effected in consequence of such incitement, and 
that it would be no defence to show that the offence would have been com« 
mitted although the incitement had never taken place (u). 

In cases where there is a variance between the crime which the accessory 
has advised and that which the principal has perpetrated, those criteria must 
be resorted to which are elearly stated by Sir M. Foster; viz. " Did the prin- 
cipal commit the felony he standeth charged with under the influence of the 
flagitious advice, and was the event in the ordinary course of things a probable 
consequence of that felony? Or did he, following the suggestions of his 
own wicked heart, wilfully and knowingly commit a felony of another kind, 
or on a different subject (x) V 

A wife may be convicted as a principal felon in uttering a forged certificate ^Tife. 
for receiving prise money, although she acted in pursuance of her husband's 
direction ; and the husband may be convicted as an accessory before the 
fact(^). 

Against an accessory after the fact, after proof of the principal felony. Accessory 
either by the record of the conviction of the principal felon or by evidence (z), *f*^ *bc 
it must be proved, that he, knowing the felony to have been committed, 
received, relieved, comforted or assisted the felon (a), or received the stolen 
goods (6). It seems once to have been held, that the knowledge of the 

(m) By thest.7&8G.4, c.29, S.64. (x) Foster, Disc. 372. Thns if ^. conn- 

(n) 6^ tit. Record. sel B. to bum the house of C, and B, 

(o) See tit. JuDGHBinrs, for the reason, knowing the house of C, spares it, and 

(p) As in Lord Sanehar'g Case, 9 Co. bums the house of 2>., A, is not aocessory 

114. See Starkie's Cr. PL 2d edit. 140. to this felony. 

(9) See Post. Disc 3, c 2, s. 3. (y) B, y. Morrii, 2 Leach, 696; Buss, 

rr) See the reason, tit. JuBGSCBNTe. dc K. 270; end see B, v. Hughes, cor. 

(#) Post. 366. Thompson, B. Lancr. Lent Ass. 1813. 

(f ) See Crim. Pleadhigs, 130. Russell, 1478. See tit. HuasAZf D and 

(«) According to Lord Coke, to eausef Wipb. 

is to procure or counsel one to forge ; to (z) The receiver of stolen property may 

ttstenif is to agree afterwards to the pro- be tried either as an accessory after the 

cmement or counsel of another ; to oon^ fact, or as a substantive felon, 7 & 8 Q. 4, 

semi, is to agree at the time of the pro- c. 29, s. 64. 

caiement, or counsel, and be in law is a (a) 1 Hale, P. C. 618. 

proeoier ; 3 Inst. 169. But an assent after (b) Under the stat. 7 & 8 O. 4, c. 29, 

the fiict committed makes not the party s. 64.— See Labciitt. 
iting a iHrincipal, 1 Hale, 684. 



10 



ACCOMPLICE. 



Variance. 



Compe* 
tency. 



accessory was to be inferred from the attainder of the principal in the same 
county (e), because every one is bound to take notice of an attainder in the 
same county ; but this notion appears to have exploded (<i). 

If il. be charged as principal in the first degree, and B, as aiding and abet- 
ting, the indictment will be supported by evidence that jB. struck the blow, and 
that il. was present aiding and abetting (e); and in such case, B, maybe con- 
victed although A. is acquitted (/). If A. be indicted as accessory to B, 
and C, he maybe convicted on evidence that he was accessory to C only (g). 
It has been sai(l, that it was otherwise in case of an appeal (h) ; yet there 
seems to have been no difference in the two cases as to the rules of evidence. 
One indicted as a principal cannot be found guilty on evidence showing that 
he was an accessory before the fact(t). Wherever a variance is material as 
to the principal, it is material and available to the acce8Sory( A) ; and vice versA, 
where a variance is immaterial to the principal, it is immaterial to the 
accessory (/). 

ACCOMPLICE- 

It seems to be an universal rule, that a particeps crindnii may be examined 
as a witness in both civil and criminal cases, notwithstanding the immorality 
or illegality of his conduct, provided he has not been convicted of any crime 
that incapacitates him (m). 

In civil actions it was formerly held that a witness could not be ad- 
mitted to allege his own turpitude, or to disprove an instrument to which 
he was a party or witness (n) ; but the rule is now exploded (o), for it is 
calculated to conceal the truth. The subscribing witnesses to a will have, 
in several instances, been allowed to give evidence to impeach the will (p) ; 
and the same rule applies where the instrument is of a negotiable nature (q). 

A clerk having embezzled his master's property laid it out in illegal 
insurances, and he was held to be a competent witness for the master 
against the insurer (r). So a man who has pretended to convey lands to 
another is a competent witness to prove that he had no title («). A co- 
assigpior of a ship may prove that he had no interost in the vessel (t). 
Parents may give evidence to bastardize their issue (u). 



(e) Stanndf. 96. 8 E 4. f. 3. 

(d) 3 P. Wms. 404. 

(e) 9 00.67. Ibid. 118, b. 4 Co. 42. 
3 Inst 148. 2 Hale, P. C. 292. 1 Plow. 
28. B, V. WaUit, 1 Salk. 334. R. v. Ben- 
Jon, 3 Mod. 121. 1 Lord Baymond, 21. 
Bong. 20. 

(/) B. V. WaOit, 1 Salk. 334. 

(^) 9 Co. 119. 2 Hale, P. C. 292. 
2 Haw. c. 46, sec 196. 

(A) 2 Inst. 183. 

(t) 2 Haw. c. 26, s. 178, a 

(k) 2 Haw. c. 46, s. 194. Sanun. 205. 
2 Hale, P.O. 292. 

(0 2 Haw. 0.46. B, v. MacaUyy 9 Co. 
65. Cro.J.279. 2 Hale, P. C. 292. 

(m) See tit Inpahous Wititbss. 

(n) 4 Inst 279. Str. 1148. Salk. 461. 
689. 3 St Tr. 427. Burr. 1255. 1 T. R. 
296. 3T.R.21.27. This was in conform- 
ity with the maxim of civil law, <' Nemo 
aUegam turpitudinem mam ett audir 
en£u/* In the case of Jcrdaine v. Laih" 
brookef 7 T. R. 601, Lawrence, J. ob- 
senred, " persons are continually allowed 
to allege their own turpitude, as in cases 



of simony, compounding felony, sale of 
offices, &c.; and possibly that maxim may 
in our law be confined to the cases of 
plaintiffs making demands ex turpi caut&y 
and to cases of defence in which innocent 
persons may be prgndioed.** 

(o)6T.B.679. 7T. B.601. 

(p) XoiM V. JoSi^tf, 1 Bl. R. 365. 7 T. 
R.604. 

(q) 7T.R.64. 

(r) Claris T.Shee, Cowp. 197. 

(«) Title V. Gret>et, Lord Raym. 1008. 

(/) Anon, cited 1 T. R. 301. So a 
witness may be called to prove that the 
defendant had been registei^ as the part- 
owner of a ship, on the oath of the wit- 
ness, without his privity or consent, Band^ 
V. Thomat, 6 M. & S. 224. And where 
a woman had deposed on oath, at the 
instance of the defendant, that the pro- 
secutor was the fitther of her bastard 
child, it was held that she was a compe- 
tent witness to prove that the defendant 
was the father. B, v. Teal, 1 1 East, 309. 

(u) See the cnaen tit. Bastakdy ; but 
Mu also Jt y.Boek, 1 Wils. 340. 



ACCOMPLICE. 



11 



In tho case of Walton t. Shelley (x), it was held that the indonee of a 
promissory note was not competent to prove that it was tainted with usury 
in its creation ; but in the latter case of Jordaine ▼. Laskbrooke (y) it was , 
denied that the former decision was warranted by the prerious cases ; and 
it was held, that a party to a bill of exchange was competent to prove it to 
hftve been void in its creation (z). So in an action for bribery the person 
bribed is a competent witness, although by the statute (a) the party who 
discoTcrs the bribery of another is exempted from an action, and the witness 
intends to avail himself of this exemption by way of defence to an action 
pending against himself for bribery committed at the same election (6). No 
one, however, can be a witness for another whilst he is a party to the record. 
But a co-defendant may be rendered competent by entering a nolle 
protequi (e) ; and if there be no evidence to charge one co-defendant in 
trespass, he may be acquitted under the direction of the court, and give evi- 
dence in the cause. 

In criminal cases it is perfectly clear that an accomplice is a competent iq criminal 
witness, previous to his conviction of a crime which takes away competency, proceed- 
in all cases, whether of treason (i/), felony (e), or mere misdemeanor (/); ^^^* 
the doctrine is founded on obvious grounds of policy (g\ and, perhaps, of 
necessity. It is also perfectly settled that no promise of pardon, whether it 
be absolute or conditional, will render an accomplice incompetent (h). In 
some instances accomplices are strictly entitled to pardon. Such was 
formerly the case with approvers, upon conviction of their associates (t). 
The practice of admitting an approver to appeal (a matter purely within the 
discretion of the court) had become obsolete in the time of Sir Matthew 
Hale (A), who observed that more mischief had arisen to good men from 
these approvements, upon false accusations by desperate villains, than 
benefit to the public by the discovery and conviction of real offenders. 
Since their discontinuance, and before their final abolition (/), the doctrine 
of approvements had become more a matter of curiosity than use (m). 
Although an approver was sworn to the truth of his appeal (n), yet it seems 
that he was not a competent witness upon the trial. For this proceeding Compe- 
have been substituted the enactments of general statutes, and the reasonable tency. 
and equitable practice of admitting an accomplice to give evidence under a 
conditional promise of pardon, in case he make a fair and impartial dis- 
closure. 



(x) 1 T. R. 296. 

(y) 7 T. R. 601. 

(z) See Rich v. Topping, Peake's Gas. 
2i4. Esp. 117. 

(a) S0.2,c.24. 

(6) Suth Y. JRawlmffgf Say. 909. How- 
<Errf V. Sfupley, 4 East, 180. Edwards v. 
Bvans, 3 Eas^ 431. Phillips v. Fowler, 
day. 889, 290. 

(c) Man ▼. Ward, 2 Atk. 229. 

Id) B, Y. Tonge, Keb. 17. 1 Hale, 
P.C.303. 7T.R.709. 

(e) Leach, C. C. L. 133. R. ▼. Dr. 
2>odd, Leach, C. C. L. 141. R. v. West- 
beer, Ibid. 12. 

(f) 2 Haw. c. 46. R. v. CroMS, 12 
Mod. 520, where the thief was a witness 
against the receiver. See R. y. Teal, 11 
East, 309 ; supra note (p). 

(g) 1 Hale, 303. 

(A) Tongas Case, 1 Hale, 304. Layer's 



Case, 10 St. Tr. 259. Lord Hale seems to 
haye been of a different opinion in case 
of a pardon promised for witnesses against 
others, 1 Hale, 304; 2 Hale, 280; and hi 
the case of an approver, 1 Hale, 303. 

(i) Cowp. 339. Leach, C. C. L. 140. 
Bat now by the stat. 69 G. 3, c. 46, ap- 
peals by approvers, as well as others, are 
abolished. 

(k) 2 Hale, 226. 

(0 By the Stat. 59 G. 3, c. 46. 

(m) If there were a dozen appellees, 
the approver was bound to fight them all 
if they waged battle; Haw. b. 2, c. 24, 
8. 24. 2 Hale, 233, 234. 3 Inst. 130. 
Bat as he had the power to make Ills own 
selection, there was room for the exercise 
of much discretion. 

(n) Stanndf. lib. 2, e. 56, p. 145. 
1 Hale, 303 ; but sec Layer^i Case, 10 St. 
Tr.259. 



12 



ACCOMPLICE. 



These statutes, in cases of coining, robbery, burglary, housebreaking, and 
horse-stealing (o), enact, that if an offender being out of prison shall discover 
two or more persons who have committed the like offences, he shall be entitled 
to a pardon of the offences respectiyely specified in those statutes (p). 

These statutes, and also others which protect an offending party who dis- 
ooyers another offender, seem to make the latter a competent witness by 
legislative declaration ; for if he were not to be a competent witness, the pro- 
visions of the statutes would be almost nugatory and useless ; it would be 
holding out an inducement to offenders to make a discovery, and when 
made, they would be precluded from the benefit of it(^). 

In present practice, where accomplices make a full and fiiir confession of 
the whole truth, and are in consequence admitted to give evidence for the 
crown, if they afterwards give their testimony fairly and openly, although 
they are not of right entitled to pardon, the usage, lenity, and practice of 
the court is to stay the prosecution against them ; and they have an equi- 
table title to a recommendation to the king's mercy (r). 

Under such circumstances, there can be no doubt, as to the competency of 
the accomplice, upon any principle ; the condition is not that he shall convict, 
nor even that he shall give evidence unfavourable to any prisoner, but that 
he shall make a fair disclosure of what he knows. The credit to be given to 
such a witness is for the consideration of the jury : the acknowledged turpi- 
tude of the witness must necessarily stamp his testimony with suspicion ; and 
it is to be the more carefully watched, since such a witness lies under a strong 
temptation to substantiate the account which he has already given, in the 
hopes of pardon, and is likely to suppose that his object will be gained by 
a conviction, and may be frustrated by an acquittal. 

No accomplice can be examined against his consent, for he is not bound to 
criminate himself. Where he is willing to gire evidence, it seems to be the 
more proper course not to include him in the indictment («). The practice is 
(where the accomplice is in custody), for the counsel for the prosecution to 
move that the accomplice be allowed to go before the grand jury, pledging 
his own opinion, after a perusal of the facts of the case^ that his testimony is 
essential {t). The admission of the party as a witness, amounts to a promise 



(o) Bobbery, 4 W. & M. c. 8, s. 7. 
Coining, 6 & 7 W. 3, c. 17, s. 18. Boi^ 
glary, housebreaking, and private stealing, 
10W.3,c.S3,B.6; repealed by the 7 &8 
Geo. 4, c. 27. 5 Ann. c. 81, s. 4. Uttering 
coonterfeit money, 15 Geo. 8, c. 88, 8. 28, 
which extends to stich offences only. Ille- 
gally baying or receiving stolen lead, iron, 
or other metals, 29 Geo. 2, c. 30 ; repealed 
by the st. 7 & 8 Geo. 4, e. 27. 

(p) See 4 Comm. 330,331. 

(q) See Lord Bllenborough's observaF- 
tions in Heward v. Shipley^ 4 Bast, 180 ; 
Bush V. BawHng, Say. 289 ; R. v. Boek^ 
loood, 4 St. Tr. 684-6; R. v. Teasdale, 
3 Esp. 68; Mead v. Robinson^ Willes, 
422 ; where it was held, that the legLila- 
ture, by holding oat inducements, and 
offering an indemnity, intended to males 
the discoverers legal witnesses. And 
PhUijuy, Fowlery 8 Geo. 2, cited Willes, 
485 ; A. V. Luckup^ Geo. 2, B. R. MSS. 
cited Willes, 425, in the note ; where, in 
a prosecution for penalties under the stat. 



9 Ann. c. 14, s. 9, the loser of money at 
cards was held to be a g^ood witness to 
prove the loss. So in i?. v. Johnsony cited 
ibid. See Intbrbstbd WiTNBes. 

(r) R, V. Ruddy Leach, C. C. L. 140, 
per Lord Mansfield, Cowp. 339. And 
see R, V. Lee, 1 Buss. & B. 861. 

(«) 1 Hale, 306. Lord Hale there says, 
the witness is never indicted, because that 
weakens and disparages ids testimony, but 
possibly does not wholly take away his 
testimony. See 8 Hal^, 234. It is said 
that if a defendant accuse himself, he may 
be a witness against his companion. See 
Sir Percy Cretby*t Cote, 19 J. 1. Noy^s 
Bep. 154. 

{t) If, however, an accomplice be taken 
before the grand jury by means of a sur- 
reptitioos order, the hidictment will still 
be valid. J2. v. Boddy Leach, C. C. L. 184. 
And it seems to be a general rule, that the 
means by which evidence was obtained 
will be no objection to the evidence itself. 
A justice of the peace bos no authority to 



ACCOMPLICE. 



13 



of lecommendatioii to mercy, upon condition of his making a full and fair 
diBcloflure of all the circnmstances of the crime. 

An accomplice, as it seems, is a competent witness, and may be examined, When in- 
if he be willing, although he is indicted along with others, provided he be not ^^^ ^"'^ 
pat upon his trial at the same time with the others (u) ; for an indictment 
against seyeral, is several as to each ; so he is if he has pleaded guilty, or 
been separately convicted, provided judgment has not been pronounced upon 
him for an offence which disqualifies him (;r). So an accomplice is a compe- 
tent witness for his associates, as well as against them, although they be 
severally indicted for the same offence (^), whether he is convicted or not, 
provided he be not disqualified by a judgment. 

By a breach of the condition the accomplice forfeits his claim to favour, 
and is liable to be tried and convicted (z) upon his confession. 

Where there is no evidence, or but slight evidence, against one of the parties 
upon his trial, the court will sometimes direct the jury to give their verdict 
as to him, and upon their acquittal of him to admit his testimony (a). 

With respect to the force and effect of such testimony, it must, from its Force of 
very nature, be regarded with great jealousy and suspicion. It is hard (Lord ""^^h testi- 
Uale observed) (6) to take away the life of any person upon the evidence of a ^^^^' 
parHeepBcrimhm, unless there be very considerable circumstances which may 
give the greater credit to what he swears. In strictness of law, indeed, a 
prisoner may be convicted on the testimony of a single accomplice (c) ; 
since, where competent evidence is adduced, it is for the jury to determine 
on the effect of that evidence. In practice it is usual to direct the jury to 
acquit the prisoner, where the evidence of an accomplice stands uncorrobo- 
rated in material circumstances ; but this it is said is a matter resting en- 
tirely in the discretion of the court (d). 



paidoo an offender, and to tell him he shall 
be a witness at ah events against others. 
R, V. Ruddy Leach, C. C. L. 140; Gowp. 
331. 

(«) Qu. and see 1 Hale, 305, supra 
note («). See also R. v. ElliSf Macnall. 63. 

{x) X«e V. Oofuel, Cowp. 1. 

(y) 3 Hale, 280, eites the case of 
BiUmore, Gray and Harbin, and Quntton 
T. jyownty 2 B. A. 685, pi. 3. That is, 
as it seems, where they are severally tried 
for an offence several in its nature ; for in 
such ease it seems to make no difference 
whether they are severally or jointly in- 
dieted. 

(z) In a late instance, a prisoner who 
had made a confession, after a represen- 
tation made to him by a constable in the 
gaol, that his acoomplices had been taken 
into custody, which was not the fact, and 
who, after having been admitted as a wit- 
ness against Ids associates on a charge of 
malicioosly killing sheep, upon the trial 
denied all knowledge of the subject, was 
afterwards tried ai^ convicted upon his 
confession. R* v. Burley, ear. Garrow, B. 
Leieester Lent Assises 1818. And the 
conviction was afterwards approved by all 
the Judges. KSS. C. 

(a) 1 Sid. 837; Trials per Pais, 148. 
Styles 401. 12 Ass. 12. 34. 2 Haw. c. 46, 
s.€B; 8av.34. 

ib) I Hale, P. C 305. 

(e) R» V. AHoood, Leach, C. C. L. 521. 



R.y. Durham k Cttnodery Leach, C. C. L. 
538. Lord Kenyon's observations in Jor- 
dedne v. Lashbrookey 7 T. R. 601 ; 1 Hale, 
P. C. 803, 804, 305. 

(d) It seems to be clearly settled, tliat 
a prisoner may be convicted on the un- 
confirmed testimony of an accomplice. 
But as a rule of discretion and in pra6tice. 
It is said, that he ought not to be con- 
victed unless the testimony of the ac- 
complice receive material confirmation. 
Regarding the rule as one of discretion 
and not of strict law, it can scarcely be 
understood that it is a rule which the Judge 
may enforce or disregard at his option, 
but rather tluit it belongs to the court to 
decide, under the circumstances of each 
particular case, whether they supply a ma- 
terial confirmation of the accompUce's tes- 
timony. Now, though circumstances may 
be infinitely varied, tiie principle on which 
the rule is founded, and by which it is to 
be applied, remains the same. The rule 
Is devised for the protection of the ac- 
cused. Independently of the rule, a jury 
would not be warranted in convicting 
upon the testimony of an accomplice, with- 
out being satisfied tlut his testimony was 
true. But even assuming them to be so 
satisfied, the rule intervenes to tiie protec- 
tion of the accused, and requires that 
they shall not convict him unless their 
belief is at least in part founded on eon- 
siderable circumstances (according to Lord 



14 



ACCOMPLICE. 



Hale) proved aliunde, which coincide with 
his testimony, and add credit to it. For 
coincidences in testimony and circum- 
stances; when they consist in particulars 
which were beyond the reach cf premedi- 
tation, may not only sanction but compel 
belief in the particular ttatement made by 
the worst of men. But then the question 
arises, is any distinction to be made as to 
the nature of the circumstances in respect 
of which confirmation is required — ^is it 
sufficient that the accomplice be confirmed 
simply as to the corpus delicti, or are some 
confirmatory circumstances essential as to 
the identity qfthe offender? The object 
of requiring confirmatory evidence must 
either be to create such a degree of confi- 
dence in the sincerity of the accomplice as 
to render bim generally credible even as 
to statements hi respect of which he is 
not confirmed, or to exclude the proba^ 
bility of his attempting to deceive in the 
particular traneaetion which he details. 
If the latter be the true principle, some 
confirmation as to the agency of the 
accused should seem to be essential ; for 
where there are no circumstances inde- 
pendently of the testimony of the accom- 
plice to implicate the accused, the con- 
viction must necessarily rest on the cre- 
dibility of the witness. From the language 
of the Judges on the subject, and pi^cn- 
larly that of Thomson, L. C. B. (in the case 
of R. V. SwaUow, cited below), it should 
seem that confirmation as to the circum- 
stances of the offence without any as to 
the identity qf the qffender is sufficient, 
provided of course the jury be induced to 
give credit to such a witness. The same 
Inference may it seems be drawn from 
those cases where it has been held, that 
where several are jointly tried, and there 
is confirmation only as to some, others 
may be convicted as to whom there is no 
confirmation. See R, v. Jonee, 2 Camp. 
188, cited below, and 22. v. Vaxoher, 
3 Starkie's C. 84, and the point is stated to 
have been expressly decided by the Judges 
in Birketfs Case, Rnss. & Ry. C. C. L. 
252. It must be admitted, that even as- 
suming that it is sufficient to confinn by 
circumstances the general credibility of 
the accomplice, yet that mere confirmation 
as to the circumstances of the offence, 
although it may show the accuracy of the 
accomplice's recollection, usually affords 
a very imperfect test of his hncm/y. The 
ordinary motive to deceive, by which an 
accomplice would be influenced, is the 
hope of saving himself, and, it may be, a 
iHend who participated in the offence, by 
the conviction of an innocent person ; and 
the temptation is to misrepresent not as 
to the circumstances of the offence, but 
merely as to the agents who committed it. 
As it is his obvious interest to acquire the 
confidence of the jury, it is plain that the 
mere accuracy of his details of the corpus 
delicti can seldom generate any reasonable 
degree of confidence in his general since- 



rity. On the other hand, whatever be the 
rule of law on the sulject, it seems tliat 
such circumstances as tend to implicate the 
accused, independently of the testimony of 
the accomplice, are of far greater weight 
than those which merely confirm him as to 
the details of tlie offence, whether the ob- 
ject be to confer general credibility or to 
exclude the apprehension of deceit in the 
particular case. If distinct proof were to 
be given aliunde, that the offence had been 
committed by two persons at the least, even 
this would effectually exclude a suspicion 
wliich migbt otherwi^ obtain, viz, that the 
witness sought to secure impunity to him- 
self by imputing guilt exclusively his own 
to another ; still a doubt might remain whe- 
ther to save a guilty firiend he did not in 
his statement substitute an innocent party ; 
and it would be difficult to extract such a 
degree of confidence from his mere deteil 
of the res gestcB, however accurate, as would 
warrant belief in his mere unconfirmed 
statement, though such an apprehension 
might to a great extent, or even entirely, 
be removed by circumstances which af- 
fected the prisoner personally^. It would 
be easy for an accomplice to convict an 
innocent substitute for a guilty P&rty, were 
no e?idence requisite to connect the latter 
personally with the offence, but exceed- 
ingly difficult to do so were his powers 
of effecting mischief to be limited to those 
against whom circumstantial evidence ex- 
isted, independently of his testimony and 
beyond the reach of his artifices. It may 
be said, that if personal confirmation were 
essential, and several prisoners were tried 
at the same time, as to some of whom 
there was personal confirmation, bnt not 
as to the rest, the jury would be bound to 
acquit the latter, though they convicted 
the rest, and tliat it would be inconsistent 
tbat on the testimony of the same witoess 
they should believe him as to part and 
not as to the rest of his story. The answer, 
however, is obvious, that if the rule be 
regarded, as it must be, a technical and 
artificial one, to be applied in protection 
of a prisoner even though the jury should 
think the wiiness faith-worthy, there 
would be no inconsistency in convicting 
il. as to whom there was personal confir- 
mation, and acquitting J9. as to whom there 
was none ; the inconsistency would not be 
greater than if both A, and B. were to be 
acquitted, though the jury believed the 
witoess, because there was no confirmation 
as to either. Indeed a greater degree of 
inconsistency might result from the oppo- 
site doctrine. For personal confirmation 
being unnecessary, if A. and B. were to 
be tried together, and there were confir- 
mation as to il. but none of any kind as 
to B., the latter might neverUieless be 
convicted if the witoess were confirmed as 
to A, and derived credit from such con- 
firmation; and yet if they were to be tiled 
separately, then, notwithstanding the 
faith-worthiness of the witness, yet, if 



ACCOMPLICE. 



15 



ibere were no confirmation the jary ought 
to acquit B. ; so that B, might he liable 
to be eonricted or acquitted accordingly 
as be yra* tried jointly with A, or sejja- 
lately. It is also observable, that if mere 
confirmation as to the (acts immediately 
connected with the commission of the 
crime were snflicient, the rule would be of 
little importance, for it rarely happens that 
there Is not some confirmation as to the 
eorprnt deiieii. 

The following are the principal authori- 
ties on the sa^ect — In the case of At- 
woodY, Robins, ear, Buller, Leach, C. C. L. 
5Sly 3d edit., the accomplice was con- 
firmed as to the circumstances of a high- 
way robbery, as to the conversation which 
took place at the time, and as to the num- 
ber of robbers, but there was no evidence 
as to the identity of the other two. The 
jury having foand the prisoners guilty, 
the learned Judge referred the question to 
the consideration of the twelve Judges, 
on the doitbt whether the evidence of an 
accomplice; uneor^firmed by any other evi- 
denee that could materially afiect the case, 
was sufficient to warrant a conviction, and 
the Judges unanimously held, that the con- 
viction was legal, and sentence of death 
was passed. It is remarkable, that in 
tUs case the Judges, at least the learned 
Judge who tried the prisoners, did not 
eooeelve the confirmation as to the corpus 
deiieti to be that which could materially 
aifect the case. In the subsequent case of 
Durham ^ Crowder, Leach's C. C. L. 538. 
Sd ed. which occurred very soon after- 
wards, it was held that the prisoners were 
properiy convicted of a burglary on the 
sole testimony (as far as regarded the 
prisonerB personally) of a pawnbroker, 
who had for years been a common re* 
eelver of stolen goods. The court seem 
in tlus case, as well as the former, to have 
decided on the gpround that no conflrma- 
tioD as to the prisoners was necessary, 
and that the evidence of an accomplice 
might Im left to a jury, though it was en- 
tirdy unsubstantiated by any other evi- 
dence. It was, however, observed, that 
Fleming; the witness, was to be considered 
as an accessory after the fact, rather than 
as an accomplice. If the opinion of the 
Judges in this case Is to be considered 
as founded on the assumption that Fle- 
ming was to be regarded as an accom- 
plice, tlie decision seems to go the full 
length of wholly dispensing with the ne- 
cessity for oonftrmation, even as a discre- 
tionary rale, for there was no confirmation 
^Hmtsoever of the witness as fiir as ap- 
pears, not even as to the carpus delicti : 
and though it is reported to have been 
said in that case, that the practice of re- 
jecting an unsupported accomplice was 
rather a matter of discretion with the 
court than a rule of law, yet it is diffi- 
cult to understand how it can be looked 
upon as any rule at all, If it may be ut- 
terly dispensed with and disregarded. In 



other instances, some confirmation of the 
testimony of an accomplice has been ad- 
mitted to be necessary. In the case of 
the Kirtg v. Despard, Howell's St. Tr. 
vol. 28, p. 846, the Attorney-general (Mr. 
Perceval) says, ** It shall not be contended 
by us that an accomplice does not require 
to be confirmed by collateral testimony, be- 
fore a jury should implicitly give him cre- 
dit." And he adds, ''The confirmation 
that is required for an accomplice, is to 
show that the story as related by him coin- 
cides with other circumstances which are 
by unexceptionable testimony proved to 
have existed, and where such circumstances 
foiling in with the testimony of the accom- 
plice cannot so easily be accounted for by 
any other supposition than that of the 
truth of the story.'' In the case of TVte 
King v. Jones, 2 Camp. 132, Lord Ellen- 
borough says, ** No one can seriously 
doubt that a conviction is legal, though it 
proceed on the evidence of an approver 
only. Judges in their discretion will ad- 
vise a jury not to believe an accomplice 
unless heisco^/brmedf or only in as far as 
he is confirmed ; but if he is believed , his 
testimony is unquestionably sufficient to 
establish the fact which he deposed." In 
the case of The King v. Sioallow and 
others, Yoric Trials, 1813, p. 16, Mr. Baron 
Thomson stated to the jury as follows : — 
" If an accomplice is materially con- 
firmed in his evidence by such testimony 
as the jury think is unimpeachable, then, 
notwithstanding the character in which 
he stands before them, he is to be heard 
and to be credited by them. And yon 
were rightly also informed, that It was not 
necessary an accomplice should be con- 
firmed in every circumstance he details 
in evidence — that would be almost a matter 
of impossibility ; and if every circumstance 
to which he has spoken could be confirmed 
by other evidence, there would hardly be 
occasion to take the accomplice from the 
bar as a prisoner to make him a witness 
here : that is certainly too much to be ex- 
pected, and never is required. It is quite 
sufficient to see that in some material focts 
the witness who shall have been an accom- 
plice, is confirmed to the satisfaction of a 
jury ; and that confirmation need not be 
of circumstances which go to prove that 
he speaks truth with respect to all the 
prisoners, and with respect to the share 
they have each taken in the transaction ; 
for if the jury are satisfied that he speaks 
truth in those parts in which they see 
unimpeachable evidence brought to con- 
firm him, tliat is a ground for them to 
believe that he speaks also truly with re- 
gard to the other prisoners as to whom 
there may be no confirmation." 

In the case of Birhett and Brady, Rnss. 
& Ry. 261, it is stated that the Judges were 
of opinion, that an accomplice did not require 
confirmation aatoitie person he charged, if 
he was confirmed as to the particulars of 
his story. 



16 



ACCORD. 



Most be 
pleaded. 



ACCORD. 

An Accord and Satufaetionj before the late alterations in the rules of plead- 
ing, was eyidence in an action upon the case, under the general issue (jt) ; but 
in an action of trespass a special plea was necessary, as it now is generally. 
An accord must be shown to haye been received in full satisfaction of the 
thing demanded {q) ; and although the plaintiff has agreed to take it in 
satisfaction, it will not be a bar to the action, unless it operate in satisfac- 
tion (r). A less sum cannot operate in satisfaction of a greater («) ; but it 
is otherwise where an additional security is giyen for the payment of a less 
turn by a third person (t). So if a debtor assign oyer all his effects to a 
trustee, to raise a fund for the payment of a composition to his creditors (u), 
the general rule is, that the court will see that there has been a reasonable 
satiiiaction (p). 

As accord and satisfaction must be specially pleaded, the eyidence must 
of course depend upon the nature of the plea, and the issue^taken. 

When the accord has been proyed by means of a witness, or by the admis- 
sion of the other party, the performance of the terms acc( rdingly must also 
be proved where it is executory in its nature. After evidence of an agree- 
ment between the plaintiff and defendant, with other creditors of the defen- 
dant, to accept a composition in satisfaction of their respective debts, to be 
paid within a reasonable time, it would not be sufficient to prove a tender, 
and a refiuaX on the part of the plaintiff to accept the composition (x). If 



So It has been held, that if an accom- 
plice be cofnfirmed as to one or more of 
several prisoners, another as to whom there 
Is no confirmation may legally be con^ 
yicted on his testimony. Thus in It, y. 
JonefyS Camp. 133, Lord Ellenborongh 
observes, ''Within a few years a case 
was referred to tlie twelve Judges, where 
four men were convicted of burglary on 
the evidence of an accomplice who received 
no confirmation concerning any of the facts 
wldch proved the criminality of one of the 
prisoners ; bnt the Jndges were nnanimonsly 
of opinion that the conviction was legal, 
and upon that opinion they all suffered the 
sentence of the law." Tlie same was ruled 
by Bayley, J. in the case of Tht King v. 
Dauber, 3 Starkie's C. 34. In the late 
case of i2. V. WeOf oikf orA€7V, 1 Mood & M. 
C. 326, on an indictment against a princi- 
pal and accessories, the testimony of an 
accomplice was confirmed as to the acces- 
sories, bnt not as to the principal, and it 
was held that both principal and accesso- 
ries ought to be acquitted. 

For further otMervations on this Impor- 
tant sulgect, the reader is referred to a 
veiy able essay, written by a gentleman 
of the Irish bar, intituled, ''Observations 
on the Confirmation of the Testimony of 
Accomplices ;" the object of which is to 
show, that in principle some confirmation 
as to the penonal identity of the prisoner 
Is necessary to warrant a conviction. 

(p) Huxham v. SmUh, 2 Camp. 19. 
Lane v. Applegate, 1 Starlde's C. 97. 
Paramore v. Johnton, 1 Lord Baym. 5C6 ; 
12 Mod. 376. It is always a good plea 



where the action is founded on a covenant, 
with subsequent damages, teetu where the 
debt arises tempore eorfietitmit icripti. 
Blake^s Cote, 6 Co. 44. Accord and satis- 
fiution by one, is a bar for all ; Com. Dig. 
ACCOBD, [A.] 1. 

(q) See Com. Dig. Accord, [B.] 1. 

(r) See Bdgcombey. Ro^ 5 Bast, 294, 
as to what amounts to a legal satisfaction ; 
and Com. Dig. Accord, [B.] 1. A judg- 
ment without satislactloo is no payment, 
Tarleton v. AUhueen, 2 Ad. & Bil. 32. An 
executory agreement may after breach, be 
discharged by accord and satisfaction, B. 
If. P. 152 ; or by a valid agreement, substi- 
tuting a new cause of action for the old. 
Case V. Barker ; T. Bay. 450. 

(t) FUch V. Svttony 5 East, 230. Lynn 
y. Bruce, 2 H. B. 317. Heatheote v. 
Crviekshankiy 2 T. R. 24. Vid. ivfira^ 
note (x). 

it) Steinman v. Magnm, 11 East, 300. 

(u) Heatheote v. CruickMhanks, 2 T. R. 
24. 

(t?) Cumber v. Wane, 8tr. 428. PinneVe 
Case, 5 Rep. 117. Co. Lit 1 12. b. VId. 
injra, note (jr). 

(x) Heatheote v. Cruiekihanii, 2 T. R. 
24. This was on demurrer to a plea. 
Where there Is an agreement to pay money 
in saUsfkction, it is not enough to show 
that he has always been ready to pay it, 
or a tender and refusal. Com. Dig. Ac- 
cord, [B] 4. Peyton's Case, 9 Rep. 
79. b. But in Bradley y. Gregory, 2 Camp. 
383, it was held that a creditor who had 
agreed with other creditors to execute a 
composition deed, with a release, on receiv- 



ACCORD. 



17 



a plaintiiT in an action against seyeral for a tort accept a sum from one to 
forego the action, he cannot, it seems, proceed against the rest (y). 



ing a composition, secured partly by the 
aeceptances of a third person, and partly 
by those of the debtor, conid not, after a 
tender and refaaal of the acceptances, sue 
for the original debt, on the ground tliat 
the agreement operated as satisfiictioii. 

See farther on this head, Cwnher v. 
Wane, Str. 426, where it was held that a 
payment of a promissory note for 5 /. could 
be no satisfaction of a debt of 15/. ; Fitch 
▼. Suttonj6 East, 230, above cited ; Kean- 
iake T. Morgan, 5 T. R. 513, where it was 
held tiiat the defendant might plead that 
he indorsed a promissory note, of which he 
was payee, to the plaintiff, in satisfaction 
of the demand. The giving the security 
oi a third person for part of a debt only, 
as for part of a stipulated composition, 
will be no bar. (Walker v. Secibome, 1 
Tumt 596.) But if, npon the fiUth of an 
agreement amongst creditors to take less 
than their whole demand, a third person 
becomes surety for the amount, a creditor, 
after receiving the amount, cannot sue the 
debtor, because it would be a fraud upon 
the sorety. Steinman v. Magmu, ^ Camp. 
134; 11 Bast, 300. If creditors agree 
to give time to their debtor for payment 
of their respective debts, and to taJce his 
pTOBiisaory notes for their amount, they 
esmiot, imless the agreement has been 
broken by the debtor, sue him for the 
anxNmt. Boothbey t. Sowden, 3 Camp. 
175. See Cranley v. HUlary, 2 M. ft S. 
1S2. Bradley v. Gregory, 2 Camp. 
S83. The defendant agreed to accept 
a sum to be paid on a (Uy fixed, and a 
eognavU for the residue; after the day 
passed, the money not being paid, he issued 
execution against the plaintiff for the whole 
amoont ; the plaintiff obtained a Judge's 
order for his discharge from the arrest on 
certain terms, but which he did not act upon, 
but brought his action for the taking in 
execution beyond the amount mention^ in 
tbeeognoTit, and recovered large damages ; 
the Court, on the ground of the damages 
being excessive, g^ranted a new triaL Parke, 
J. held that the action was not maintain* 
able, the Judge's order upon being drawn 
np bong In the nature of an agreement, and 
one of the terms being that the plaintiff 
ahonld not bring any action for the impri- 
sonment. Wentworth t. BuUer, 9 B. & C. 
640. In an action against several, the de- 
fendants fdeaded a former action brought 
by tlie ptaintiflk for the same cause against 
one of the defendants, and that he paid a 
•mall sum into court, upon which the plain- 
tiffs taxed and received their costs up to 
that time, and afterwards discontinued the 
actimi,aad the defendant received his taxed 
costs ; it was held that the issue in the se- 
cond action, that the plaintiff accepted the 
said som and taxed costs in full satisfac- 
tion, was not proved by the fact of the 

TOL. II. 



plaintiff having received the costs only, and 
that the defendant by accepting the taxed 
costs had assented to the discontinuance of 
the action. Power y.Bvtcher^lOB.kC, 
329. It is not sufficient to show that the 
plaintiff agreed to receive a composition, 
and on the defendant's assigning particular 
debts to creditors to execute a general re- 
lease, and that all the other creditors ac« 
cepted the composition and executed the 
release, without proving a t<-iider of the 
notes to the plaintiff. Cranley v. Hillary, 
2 M. & S. 120, and see Walker v. Seaborne, 
1 Taunt. 526. Oughton v. Trotter, 2 N. 
& M. 71. Bat it would it seems be suffi- 
cient to show that the notes were tendered. 
Oughton v. Trotter, 2 N. & M. 71, and see 
Bradley v. Gregory, 2 Camp. 383. Butler 
V. Rhodes, 1 Esp. C. 236. Creditors agreed 
to accept payment by the debtor's cove- 
nanting to pay to a trustee of their nomi- 
nation onc*tiiird of his annual income ; the 
creditors nominated no trustee, and the 
agreement was not acted on, but it was held 
that the agreement though not properly an 
accord and satisfaction was a good defence 
under the general issue, it being a new 
agreement with the defendant, the consi- 
deration of which to the creditor was for^ 
bearance by all the other creditors. Good 
V. Cheetman, 2 B. & A. 329. And where 
an agreement with creditors has been partly 
executed, and terms afterwards dispensed 
with by a part only of the creditors, it was 
held that a creditor party to the agreement 
but not to the dispensation could not sue 
for his original debt. Coek v. Saunders, 1 
B. & A. 46. The plaintiff and other credi- 
tors of the plaintiff agreed to take a com- 
position of 5#. in the pound, payable by 
notes at four and eight months, but there 
being a dispute between the plaintiffs and 
defendants as to the balance due, the plain- 
tiffs promised to adjust their account with 
one of the defendants, and the defendants 
said they would do as the other creditors 
did ; after some dispute as to the amount, 
the plaintiffs' attorney offered to pay the 
composition on the sum claimed by the de- 
fendants, which was the sum really due; 
the plaintiffs' attorney refused and claimed 
the whole balance, and it was held that the 
plaintiff^, although no tender had been 
made, were entitled to no more than the 
composition upon the balance. Reay v. 
White, 1 Cr. & M. 748. But if the debtor 
wilfully prevent the creilitor from receiving 
the benefit of the composition, the latter is 
remitted to his right. Garrard v. Wolcer, 
8 Bing. 258. So such on agreement may 
be defeated by evidence of fraud, as if the 
debtor wilfully withhold from the creditor 
information respecting his estate. Vine v. 
Mitriiell, 1 M. & R. 837. 

(»/) JJufreme v. Hutchinson, 3 Taunt. 
117. 

c 



18 



ACCOt NT. —ADMISSIONS. 



Nature of 
admissions. 



An accord in respect of which a party may have remedy for a breach, is 
binding (z). 

An agreement after action brought for an unliquidated demand, by which 
the plaintiff agrees to take a sum in discharge of the demand, is a good 
consideration for a promise by the plaintiff to stay the proceedings and pay 
his own costs (a). 

ACCOUNT. 

For the evidence to support a count upon an account statedf see Assump- 
sit. — With respect to the evidence in an action of account little need be 
said, since the proceeding seems to be obsolete. The evidence depends 
upon the nature of the plea in bar, which alleges that the defendant never 
was bailiff or receiver to the plaintiff, or that he has accounted, or that the 
plaintiff has released him (6), &c. 

Upon a plea that he was never receiver, the defendant cannot show that 
he received the money from the plaintiff by way of bailment, to deliver to 
another person, and that he did deliver it accordingly ; for he did receive 
the money although he was to be accountable only conditionally, and there- 
fore the evidence does not support the plea (e). Neither under such a plea 
can he give a release in evidence (jd). The burthen of proof on such a plea 
lies upon the plaintiff (e). Where he charges the defendant as receiver by 
the hands of A», it is sufficient for him to prove that A, directed the defend- 
ant to borrow of another to pay the plaintiff, and that the defendant 
borrowed accordingly, and that A. gave his bond to the lender (/). 

ACKNOWLEDGMENT. See ADMISSION.— FRAUDS, STATUTE OF. 
ACQUITTAL. See Vol. I. P. II. tit JUDICIAL INSTRUMENTS. 

ACTION, COMMENCEMENT OF, HOW PROVED. See WRIT.-^ 

LIMITATIONS.— TIME. 

ACTS OF PARLIAMENT. See tit STATUTE. 

ADMINISTRATOR. See tit EXECUTOR. 

ADMISSIONS. 

It is a matter of obvious and daily remark, how much of the materials of 
evidence in ordinary practice is derived from the admissions, direct and 
indirect, of the parties themselves, and how difficult it would frequently be, 
if not impossible, to establish the truth by means of any other evidence. 
Evidence of this kind admits of great variety both in its nature and appli- 
cation. In many instances the admission is directly and expressly made 
with a view to establish the fact, and in order to supersede the necessity of 
any other proof; as where it arises upon the face of the pleadings, or is 
made by matter of record ; or by specialty, by which the party is estopped 



(2) Cartwright v. Cooike,3 B.& Ad. 701. 
An accord is good with mutual promises to 
perform, althongh the thing be not per- 
formed at the time of the action. Com. 
Dig. Accord, [B.] 4. 

(a) WilHnaon v. Byers, 1 Ad. & EU. 
106; and tembUf per Littledale, J., so it 
woald in case of liquidated demand. A 
treaty is proved between two for the re- 
noDciatioD by the one of e right of action 
against the other; it is also proTed that the 



latter has repudiated all koo^edge of soeh 
an agreement; the presun^ption is that 
none was concluded, and the former may 
sne on his original right Smith v. JDicMfi- 
ton^ 3 B. & P. 630. 
{b) 1 Roll. Ab. 121. 

(c) 8 Roll. Ab. 683. Selw. N. P. 5. 

(d) Tr«Xtoti^Adyv.5ma//,2Brown].24. 
(«) Hob. 36. 

(/) Harrington v. Deane, Hob. 36. 



ADMISBIONSy NATURE OF. 



19 



from afterwards denying the admitted fact. In other instancesy although 
there be no direct and express admission for such a purpose, yet if a repre- 
sentation be made of any fact, with a view to influence the conduct of 
another, or to derive an advantage to the party, and which cannot after- 
wards be denied without a breach of good fttith, such an admission will not 
only be evidence of the fact, but will usually preclude the party who has 
made it from insisting npon the contrary. In such cases the admission 
does not operate merely as presumptive evidence of the actual truth of the 
&ct, which must give way to positive proof of the C9ntrary, but precludes, 
and as it were estapt the party, on grounds of policy, from repudiating his 
own representation, and renders the actual truth of the fact immaterial. In 
other instances again, such evidence rests simply on the presumption that 
the party would not have admitted a fact contrary to his own interest, 
unless it had been true : such admissions are frequently of the most forcible 
nature, as in the case of a confession of guilt by a prisoner (</). It is 
a most general and extensive rule, that all a man's acts and declarations 
shall be admitted in evidence whenever they afford any presumption 
against him: for it is to be presumed that he acted or spoke consistently 
with his knowledge of the truth. All presumptions founded upon a man's 
conduct may be referred to this head, for a man's acts and conduct are in- 
dications which frequently afford presumptions as strong as express decla- 
rations; the very silence of a party will frequently supply a strong in- 
ference ; as, for instance, where one makes a claim upon another, before 
witnesses, the justice of which the latter does not deny (A). 

The admissibility and effect of evidence of this description will be con- Admiisions 
sidered generally, with respect to the nature and manner of the admission ™*?® ^^ 
itself; and secondly, with respect to the parties to be affected by it. In evidence. 
the irst place, as to the nature and manner of the admission, it is either 
majAcy first f expressly with a view to evidence ; or, secondly , with a view to 
induce others to act upon the representation ; or, thirdly y it is an uncon- 
nected or casual representation. In general, a party cannot contradict that 
by evidence which he has admitted on the pleadings ; nor can the jury find 
any fact contrary to such admissions, for they are sworn to try the matter 
in issue between the parties, so that nothing else is properly before 
them (t). 

It is a general rule that what is admitted on record must be taken to be 
proved, and cannot be disproved (A). And also that whatever is pleaded and 
not denied is to be taken as admitted (Q. But it seems that where a party 



{g) Tide vrfroy Admissions in Cri- 
MiNAi* Casks. 

(h) 8«e as to an admission by a de- 
fendant that hit trade is a nuisance, B, v. 
IfetUiey Peake's C. 91. Admissions im- 
plied from the aequietcence of a party, 
JVmIs v. PwrkUh I £sp* C. 329. JDoe v. 
Pye, 1 Esp. C. 964. An admission that a 
debt was not due to an insolvent who had 
omitted to insert it in his soheduk^ 
HiduOU V. Doumes, 1 M. & R. la 

(i) B. N. P. 298. So the payment of 
money into conrt admits the eluuracter in 
which the plaintiff snes, and his right to 
reeover at least to the amount of the money 
so paid. 4T. R.579. 2 T. R. 275. Sec 
tit Payment into Court. 



(k) B. N. P. 298. And see Bvaru v. 
OgUvie, 2 Y. & J. 79. 

(2) Wimbuih V. TaUbois, Plowd. 48. 
3Latw. 1215. B.N. P. 298. In such case 
the juf} cannot find to the contrary. 
2 Lutw. 1215. But no more is admitted 
than is suted. Williams v. Sills, 2 Camp. 
50a Watson v. King, 4 Camp. 272. 
Ir^a, tit. Covbnant. Dunston >. 
Tresider, 6 T. R. 2. If\fr€i, tit Tabs- 
pass. The plea of non-assumpsit does not 
admit any immaterial allegation in the 
inducement. Beiinion v. Daoison, 3 M. 
k, W. 642. Nor any title but sach as is 
stated in the declaration. Where the de- 
claration states letters of administration 
which on the face of them are void, the 

c2 



20 



ADMISSIONS^ NATURE OF. 



Admissions in pleading admits, because he does not deny, a part alleged by the ad- 
witliaview yersarv, it is not to be taken as if proved in evidence, so as to warrant such 
toe?ideDC6. inferences as might have been made had the fact been proved in evi- 
dence (m). A plea of the general issue usually admits the title of the 
plaintiff to sue in the special character of executor or administrator (n) ; in 
respect of a cause of action arising in the life time of the testator or testa- 
trix. In an action by a husband and wife, the plea of the general issue 
admits the marriage (o). In an action on the case for negligent driving of 
a carriage by the defendant*s servant to the injury of the plaintiff's person, 
the ownership of the carriage and the fact of its having been driven by the 
defendant's servant is admitted by the plea of not guilty (p). 

An admission upon a plea does not operate as an admission with respect 
to the proof of an issue upop any other plea {g) ; and although the form of 
protestations is still adhered to in pleading, for the purpose of precluding 
the inference (r) that the party pleading one matter meant to admit 
another, they seem to be but of little use at the present day. 

By letting judgment go by default the defendant admits a cause of 
action, and therefore he cannot afterwards insist on fraud on the part of the 
plaintiff («). Where a plea to a count in indebitatus assumpsit is pleaded 
as to a precise sum, that sum, although laid under a mdelieety is admitted to 
be due, and must be covered in order to warrant a verdict for the defend- 
ant (<). So where a party has solemnly admitted a fact under his hand and 
seal, he is estopped not only from disputing the deed itself, but every fact 
which it recites (u). Thus, if one deed be recited in another, which latter 



pica of the general issue does not admit a 
title sufficient to enable the plaintiff to 
recover. Adatnt v. Sctvage, 6 Mod. 134. 
A new assignment of nnnecessary violence 
to a plea by the defendant of an entry to 
abate a nuisance, admits the nuisance. 
Pickering ▼. Sudd^ 1 Starkie's C. 56. 

(m) Per Alderson, B. in JBdmondt v. 
Orovef, 2 M. & W. 642, tupra. But note, 
that it was unnecessary in that case to decide 
the point. The defendant pleaded, by way 
of set-off, that the plaintiff made his pro- 
missory note payable to ^. C, and that 
the administrator of ^. C. indorsed it to 
the defendant. Replication that the sup- 
posed cause of action did not accrue to the 
defendant within six years. The making 
of the note and the indorsement were held 
to be admitted by the replication, and also 
that the defendant might avail himself of 
a memorandum of the payment of interest 
written on the note by A, C to bar the 
Statute of Limitations. Oall v. Copere^ 
1 Ad. k. EIL 102. 

(n) See tit. Executor. 

(o) See tit Husband and Wifb. 

(jp) Emery v. Clarhe^ 2 Mo. & Ry. 260. 
Tavemer v. Little, 5 Bing N. C. 678. 
Wo^e V. Beardf Q. B. cited 2 Mo. & R. 
261. 

{q) Vol. I. p. 387. Nor can a notice of 
set-off or particular of it be used as evi- 
dence on the other side. lb. And see 
MiUer v. Jokmon, 2 £sp. G. 602. Straey 
V. Blake, 1 M. & W. 168. Tlie statements 
in a plea held bad on demurrer are not 



evidence for the plaintiff on the general 
issue. Montgomery v. Richardton, 5 C. 
& P. 247. Neither a plea nor demurrer 
to a bill in equity is evidence by way of 
admission against the defendant in another 
transaction. After* a demurrer to a bill 
in equity overruled, the party may stUl go 
on and answer; and consequently the 
demurrer is not to be taken as an absolute 
admission of the facts charged. And on 
the same principle a plea in equity cannot 
be so, for it amounts merely to a state- 
ment of circumstances to prove that, sup- 
posing the facts charged to be true, the 
defendant is not bound to answer. Tomr 
hint V. Athby, 1 M. & M. 32. A plea in 
a discontinued action is not evidence 
against the defendant in another action. 
Allen V. Hartley, Doug. 20. A de- 
murrer admits those facts only which are 
well pleaded. 

(r) See Co. Litt. 124, b. Doct. PI. 2a5. 
2 Will. Sannd. 103, n. 1. Montgomery v. 
Biehardton, 6 C. & P. 247. Firmin v. 
Cntc\fix, lb. 08. 

(«) EoMt India Company v. Glover, 
1 Stra. 612. 

(t) Courim V. Paddon, 2 C. H. & R. 
547. But the plea is for this purpose 
divisible. lb. And see Green v. Marth, 
4Dow, P.C. 600. 

{u) B. N. P. 298. See Vol. I. Ind. tit 
EsTOPPBL. In other cases, although tlie 
parties may be estopped, the jury are not. 
Goddard'i Ca$e, 2 Co. 4, b. -, B. N. P. 29& 



ADMISSIONS, NATURE OF. 



121 



ts proved to be executed by the party, the recital will be evidence of the 
execution of the recited deed (x). In the case of Shellet/ v. Widght (i/) it 
was held that the obligor of a bond was estopped from averring against the 
obligee, that he had not received certain sums of money for the obligee, 
recited in tlie condition of the bond to have been so received by him. So a 
recital of a lease in a deed of release is evidence of the execution of such a 
lease (z). So tbe date of a lease is evidence that it was executed the same 
day (a). But the whole of a recital is to be taken ; and therefore if a 
patent be recited to be surrendered, and one relies upon the recital as proof 
of the existence of the patent, it will also be proof of a surrender (b). Where 
a covenant to lay out a sum in an annuity recited that the covenantor had 
^ven a bond for the payment of the money, the recital was held to be 
evidence of the bond (c). The subscription of a paper by one as a witness 
is not of itself proof of acquiescence in the contents (cf). 

So in an action against a master for not inserting the true consideration in 
an indenture of apprenticeship, the recital in that part of the indenture 
executed by the defendant, that A, B, put himself apprentice &c. is evi- 
dence of the fact against the defendant (e). So a grant to a corporation by 
a particalar name is evidence as against the grantor, that the corporation 
was at that time known by that name (/). But a recital will not operate as 
an estoppel, or as evidence against one who was neither a party to the deed, 
nor claims under a party {g). Although he may claim title under a deed 
containing such recital (A). Where a counsel in a cause admits a fact, 
CTen by inference, it is to be taken as proved (t). 

Seeottdhf, there is a strong line of distinction between admissions or con- Admissions 
duct upon which a party has induced others to act, or by means of which 
he has acquired some advantage to himself, and those admissions which 
have been made without any reference to the matter litigated, and which 
are not immediately connected with it: in the former case the party is 
usually concluded absolutely by such an admission ) as where he makes an 



which have 
been acted 
upon. 



(7) See tit.. Recital.— Debd ; and 
1 Salk. 186. The recital of an ancient 
charter in a modem one is evidence. Per 
Abbotty J. Oerms v. Great Western 
Canal Company, 5 Bf . & S. 78. 

{y) Willes, 9. See also Cossens v. Cot^ 
senSf Willes' R. 25. And sec Bowman v. 
Taylor, 4 N. & M. 264. Sees v. Loyd, 
Wight. 123. 

(z) Per Holt, J. Ford v. Greffy, 1 
Salk. 186. Com. Dig. Estoppel, [B.] 5. 
Crease v. Barrett, 1 C. M. & R. 019. 

(a) 1 Salk. 485. In trespass against 
a sheriif, a bill of sale, reciting the writ, 
the taking, and the sale of the goods, is 
evidence against him of these facts. Wood- 
usard v. Larking, 3 Esp. C. 286. 

(6) 2 Vent. 171. 1 Com. Dig. Evi- 
naacE, [B.] 5. A recital in a bond that 
the parties had agreed to execute a bond 
in the sum of 5001. does not confine the 
bond to that sum if actually executed in 
the penal snm of 1 ,000 /. Ingleby ▼. Stoift, 
3 M. & S. 488. 10 Bing. 84. 

(c) 2 P. Wms. 432. Marchioness qf 
Amumdaie v. Harris. 

(d) 1 Rap. C. 57. Where a party exe- 
cuted a deal (for rai:»ing money un an an- 



nuity) reciting a will, and that the trustees 
had not sold, and that he was in possession 
by their permission ; held that such ad- 
mission was evidence to show that he was 
not the legal owner of the estate. Doe v. 
Cotdthred, 2 Nev. & P. ia5. 

(e) Btirfeigh v. Stibbs, 1 T. B, 465. 

(f) Mayor of Carlisle v. Blamire, 
8 East, 493. 

{g) 1 Salk. 186. Com. Dig. Evidence, 
[B.] 5. Ibid. Estoppel, [A.] 2. Bat it 
may be secondary evidence where tlie ori- 
ginal is lost. 1 Salk. 280. Com. Dig. Evi- 
dence, [B.] 5. But it operates ugainst 
those who claim under the party. Fitz- 
gerald V. Eustace, Bac. Ab. Ev. 047. 2 P. 
Wms. 432. 

(A) A deed conveying an estate to B., 
but to which B, is no party, recites tJie 
bankruptcy of ^.; 5. conveys the estate 
by a deed which contains no such recital ; 
the former deed is not evidence against B. 
of the bankruptcy of A. in a suit as to 
other lands. Doe v. Shelton, 3 Ad. & Ell. 
265. 

(i) Strncy v. Blake, 1 M. & W. 168. 
As to admissions by an attorney, bee tit. 

ATfORNEY. 

C3 



22 ADMI88I01CS, NATURE OF. 

admission for the purpose of trial (h). Where a man has cohabited with a 
woman, and treated her in the face of the world as his wife, he cannot 
afterwards object to a creditor who supplied her with goods, that she is not 
his wife (Z), So where a man has held himself out to the world in a 
particular character, he cannot afterwards divest himself of it, in order to 
claim that to which under the assumed character he is not entitled (m). A 
man who acquiesces several years in a commission of bankrupt, and solicits 
the votes of creditors in the choice of assignees, cannot afterwards dispute 
the commission (n). So a petitioning creditor cannot dilute the debt in 
an action at the suit of the assignees (o). So a defendant is estopped, by 
the recognizance of bail entered into for him by the name by which he is 
sued, from pleading a misnomer, although he is no x>aTty to the recogni- 
zance (p) ; for in these and other such cases the party, by taking the benefit 
of the act, has conclusively adopted it. So a tenant cannot dispute his 
landlord's title, nor can a copyhold tenant dispute the title of the lord of 
the manor (q), A tenant is concluded by the statement which he makes to 
his landlord, as to the time of entry (r). Respondents obtaining a respite of 
an appeal cannot afterwards object the want of notice of appeal (s). Where 
one being a^ked his name previous to the suing out of process, represents 
it to be Johny he cannot, in an action of trespass against the sheriff, insist 
that his name is William (t). So where a man has made a deliberate ndmis- 
sion in rem^ by giving his promissory note, or by entering into a bond, 
or other obligation, for the amount of goods sold, he is conclusively bound 
by it in the absence of fraud, or perhaps, of mistake ; for the very intent 
and purpose of the acknowledgment is, that it shall operate as conclnsive 
evidence against the party (u). Where, however, a receipt has been given 
for money, it is not so conclusive but that the party may show that it was 
given under a mistake (x), and that he did not receive the sum or thing in 
question. So a parish certificate is evidence, for all the rest of the world, 
against the x>&rish which granted it, and conclusive as to the parish to which 
it was directed (y). Where a plaintiff signed himself M. D. it was held 
that he was to be taken for a physician, and that he could not maintain an 
action for fees (z). So it has been said that proof of the bankrupt's sub- 
mission to a commission is evidence against him of his being such (a), as, if 
he obtain his discharge as a bankmpt under a Judge's order (b). But the 



(k) Such an admission must either be 
proved to have been signed by the attorney 
on the record, or by the authority of the 
party himself. See Vol. I. and Ind. tit. 
Admissions. 

(/) Wat$(m V. Threlkeld, 3 Esp. 637. 
Bobinfon v. Nahcn, 1 Camp. 246. Munro 
V. De Cfiemant, 4 Camp. 216. 

(m) Watson v. Threlkeld, 2 Esp. 637. 
Rdbifuon v. Nahouy 1 Camp. 246. 

(n) Like v. Hotoe and Rogers, 6 Esp. C. 
20. Flower v. Heebee, 2 Ve». 236. 

(o) Hctrmer ▼. Davis, 1 Moore, 300. 

(p) Meredith v. Hodges, 2 N. R. 463. 

{q) Doe d. Nepean v. Budden, 6 6. & A. 
620. See tit. Use akd Occupation, 
aud tit. Ejectment. 

(r) Doe d. Syre v. Lanthley, 2 Esp. C. 
636. 

(#) /?. V. Justices qf Cartnarthenshire, 
4 B. & Ad. 663. 



(t) Priee v. Harwood, 3 Camp. 108; 
and see Bass v. Clioe, 4 M. & S. 13. 

(«) See Nash v. Turner, 1 Esp. C. 117. 
SoUmonson v. Turner, 1 Starkie's C. 61. 
Yid. ii^fra. Assumpsit. 

(ff) Stratton y. BasttOl, 2 T. R. 366. 
Benson v. Bennett, 1 Camp. 394. Bristow 
V. Eastman, 1 Esp. C. 172. 

(y) 4 T. R. 266. B. v. Headeom, Burr. 
8. C. 263. 

(z) Lipscomb V. Holmes, 2 Camp. 441. 
See Charley v. Boleott, 4 T. R. 317. 

(a) Hamland ▼. Cook, 6 T. R. 666. 

{b) Qoldie V. Gfunstone, 4 Camp. 381. 
Mercer v. Wise, 3 Esp. 219. Watson v. 
Wace, 5 B. Sc C. 163. Secus, if he make 
the admission merely in a transaction with 
thlnl persons. Heane v. Rogers, B. & C. 
677. 



ADMISSIONS^ NATURE OF. 



28 



mere surrender of the bankrupt is not sufficient, because it is compulsory (c). 
The fact that a party has proved a debt under a commission of bankrupt is 
not even prima fade evidence, in an action by the assignees of the bankrupt 
against that party, of the requisites to support the commission (d) \ for a 
creditor has not the means of knowing what was the evidence upon which 
the party was declared a bankrupt ; and by proving the debt he at most 
gives credit to the petitioning creditor, and the commissioners, that the 
former has not sued out a commission, nor the latter declared the party 
bankrupt, without proper grounds (e) ; and it is not reasonable that he 
should be put to the dilemma of being barred by a certificate, or of being 
taken to have admitted that every act necessary to support the commission 
really existed. Such admissions (/), though they be conclusive, are not 
e$tcppeb in the strict and technical sense, which, to be conclusive, must 
be pleaded ; but are conclusive upon the evidence, on the principles of good 
sense and sound policy (g), 

Thirdfy. Where the admission or declaration is quite foreign to the ques- Collateral 
tion pending, although admissible, yet it is not in general conclusive evi- admissions. 
dence; and though a party may, by falsifying his former declaration or 
oath, show that he has acted illegally and immorally, yet as he is not guilty 
of any breach of good faith in the existing transaction, and has not in- 
duced others to act upon his admission or declaration, nor derived any 
benefit from it against his adversary, he is not bound by it : the evidence 
in such cases is merely presumptive, and liable to be rebutted. Where the 
admission consists in a loose and careless declaration, if it be evidence at 
an, it is of little weight (A). Proof that B. has dealt with A, as the farmer 



(c) Per Ld. Ellenboroogh, 4 Camp. 383. 
Xdtber is he precluded by a petition to 
tbe Chancellor to enlan^ the time of sar- 
rendeiiiig. Mercer v. WiiCj 8 Bsp. C. 219. 
Nor by an application to a commissiooer 
to appoint an official assignee. Miaik v. 
Clarke, 2 Bing. N. C. 899. 

(4) Rankin v. Horner^ 16 East, 191. 
Stewart Y.liiekmanfllSap.CAQS, It had 
before been held, that the proving a debt 
wider a commiMion of a bankmpt ettopped 
the party from afterwards disputing it. 
Per Lord Mansfield, Walker v. NeweU, 
cited 3 T. R. 322. 

(e) Bankin v. Komer and another , 16 
East, 191. Bat see MdUhy v. Ckrittie, 
1 Esp. C. 340. Walker v. BumeU, DongL 
903; 3T. R.321. 

(/) See ftirther VoL II. tit Pbbsumf- 
Tioir. An execatrix who uses the tes- 
tator's goods as her own, and afterwards 
as her husband's, cannot object to their 
befaig taken in execution for the husband's 
debt. Qtaek v. Stainea, 1 B. & P. 293. 
See tit. Shbriff. A petitioning creditor 
cannot dispute the debt in an action by 
the assignees. Banner v. Davit, 1 Moore, 
300. A distress on one as tenant is evi- 
dence of the tenancy. Lord Falmouth v. 
Swann, 8 B. & C. 459. Where A, B. ex- 
eeated a warrant of attorney in the name 
ol C. B., held that judgment was properly 
entered np, and a >?. fa. issued and exe- 
cuted against him, by that name. Beevet 
▼. Slater^ 7 B. & C. 873. The obligor of 



a bond represented to a purchaser that it 
was a valid instrument, and would be paid 
when due ; he cannot afterwards set up as 
a defence that it was void, as having been 
given for a gaming debt. Davison v. 
Frankliny 1 B. & Ad. 142. One of a com- 
mittee of a company empowered by Act of 
Parliament to carry on certain works, is 
not estopped by having joined in making 
falls on subscribers, or by payment of 
calls, from disputing their validity, if Ille- 
gal; for such calls being against law, no 
person could be misled. Stratford and 
Moreton BaHway Company v. Stratton, 

2 B. & Ad. 518. A rdator who did not 
concur in the election of the defendant, 
although he appeared afterwards to have 
acted and attended corporate meetings 
with him, may still sustain the application 
for a quo toarranto. B. v. Benney, 1 B. 
& Ad. 684 ; and see B, v. Clarke, 1 East, 
38. Seeus where he had concurred in the 
election of others at the time when the 
same objection to the title of the elected, 
and of which he sought to avail himself on 
the motion, was made and overruled. B. v. 
Parkyn, 1 B. & Ad. 690 ; and see B. v. 
Symmds, 4 T. R. 223. B, v. Mortlock, 

3 T. R. 300. 

{g) See the observations of Abbott, 
L. C. J., 5 B. & C. 166. 

{h) Burr. 2067; 2 Wils. 390; and 
Lord Ellenborough's observations, 1 M. & 
S. 636. 

c4 



24 



ADMISSIONS, NATURE OV. 



Collateral 
admiAsions. 



of the post-horse duties is evidence in an action by A, against B., to prove 
that he is so (t). Upon an indictment under the 27th of Eliz. for remaining 
in this kingdom forty days after taking orders from the See of Rome, proof 
that the defendant had officiated here as a Romish priest was held to be 
evidence of his having taken orders (A). 

In an action for non-residence, proof that the defendant has acted as the 
parson, is evidence against him that he is such (/). In an action for not 
netting out tithes, proof that the defendant has paid tithes to the plaintiff is 
evidence of his title to receive them (m). An acknowledgment by the de- 
fendant that his trade is a nuisance, is admissible, although not conclusive 
evidence against him, upon an indictment for setting up his trade at another 
place (n). Proof that A. B., as the proprietor of a newspaper, had given 
security for the payment of the duties on advertisements, and had from 
time to time applied to the Stamp-office concerning duties on the paper, 
was held to be evidence that he was the publisher (o). A description by 
the party as to his situation is evidence against himself that he holds that 
situation (p). And therefore, on an information against a military officer 
for false musters, the returns themselves in which he described himself to 
be such officer were held to be evidence of the fact {q). 

An advertisement by an auctioneer of the sale of the property of A. B, 
a bankrupt, is evidence in an action by him against the assignees that A. B. 
was a bankrupt (r). In an action for slandering the plaintiff in his pro- 
fession as an attorney, the words importing that the plaintiff was an 
attorney are evidence of the fact («). 

Where a lessee covenanted that the lease should be avoided by his bank- 
rnptcy, proof of his submission to a commission was held to be evidence of 
bankruptcy without proof of any act of bankruptcy (t). 

The oath of a party taken before the commissioners of the income-tax is 
evidence upon an information under the game-laws (u), but not conclusive. 
So the omission of a debt by an insolvent in his schedule is evidence against 
him, although it does not estop him from suing (x). So in a suit between 
the lord of a manor and the devisee of a copyhold, the recital of the devise in 



(t) Ra4fard v. ATIniosh, 3 T. R. 682. 
And see Peacock v. Harrity 10 East, 104. 
Litter v. Priestley, Wightw. 67. 

(*) JR. V. Kerne, 8 St. Tri. 694. R. v. 
Brommich, 2 St. Tr. 066. 

(/) Bevan v. Williams, 3 T. R. 635. 

(m) Per Lord Kenyon, 3 T. R. 636; 
4 T. R. 367, per Buller, J. 

(n) B, V. Neville, Peake*8 C. 91. 

(o) R, V. Topham, 4 T. R. 126. 

(p) R. Y. Gardner, 2 Camp. 513. 

(q) Ibid. 

(r) Maltby v. Christie, 1 Esp. C.340. 
Booth V. Coward, 1 B. & A. 077. Inglit 
V. SpencCf 1 Cr. M. & R. 432. So where 
the defendant, with a view to a commis- 
sion, made affidavit that the party had 
become bankrupt. Ledbetter v. Salt, 4 
Bing. 623. 

(#) Berryman v. Wise, 4 T. R. 366. 
Pearce v. Whale, 6 B. & C. 39; and see 
Vol. 11. tit. Libel. In a qui tarn action 
•gainat a collector of taxes, it is not ne- 
cessary to give in evidence his warranto 
Proof that he has acted as collector is 
•ufficient Lister v. Priestley, Wightw. 



67. Accounting with one as farmer of the 
tolls of a turnpike, who has assumed that 
character by consent of those concerned, 
estops the party from disputing the validity 
of his title, when suing by account stated 
for those tolls. Peacock v. Harris, 10 
East, 104. In an action against overseers, 
acts done by them in that capacity are 
evidence of their being overseen. Mer- 
rilVs Lessee v. Whitechurch, Salisbury 
assiz. 1817. But they are not concluded 
by the acts of former overseers, without 
regular proof of their appointment. Or 
by the act of a co-defendant previous to 
the commencement of his overseership. 

(0 Boe v. Hodgson, cor, Abbott, L. 
C. J. Sitting after Easter T. 1823. 

(m) R. v. Clarke, 8 T. R. 120. So a 
return under the stat. 1 & 2 O. 4, c. 87, 
of com in the possession of a party, as 
sold and delivered to B,, docs not pre- 
clude him from showing that it was deli- 
vered to D. on account of B., but that B. 
was not to have possession before payment. 
Woodley v. Broum, 2 Bing. 627. 

(or) 3 Camp. 13. 



ADMISSIONS, NATURB OF. 



25 



the admittance is evidence of the devise against the lord, although it would Collateral 
not have been so against the heir (y). admissioiis. 

In an action for bribing of one who had a vote at an election, the very 
offer to bribe is CTidence against the defendant that the party solicited had 
a right to rote (z). 

In the case of Marru r. Miller (a) it was held, that, in an action for 
criminal couTersation, an admission by the defendant that he had committed 
adultery with the wife of the plaintiff was not sufficient, without proof of a 
marriage in fact. But when this doctrine was urged in a subsequent 
case {b) the Court observed, as to the case of criminal conversation, '< To 
be sure, a defendant's saying in jest, or in loose rambling talk, that he had 
lain with the plaintiff's wife, would not be sufficient alone to convict him in 
that action ; but if it were proved that the defendant had seriously and 
solemnly recognized that he knew the woman he had lain with was the 
plaintifTs wife, we think it would be evidence proper to be left to a jury, 
without proving a marriage.'' 

Answers in Chancery, as has been seen, operate as admissions upon oath (e). 
It seems, however, that an admission by the defendant, even to an answer 
in Chancery, is merely secondary evidence as to the execution of a deed, and 
therefore does not supersede the necessity of proving it by the subscribing 
witness, because a fiict may be known to the subscribing witness which is not 
known to the obliger, and he is entitled to avail himself of all the knowledge 
of the subscribing witness relating to the transaction (d,) But this objec- 
tion does not apply where the party enters into an admission with a view to 
the trial of the cause. And it has been held that a declaration by the lessee 
of a plaintiff in ejectment, that he has assigned a lease, is evidence of the 
hct(e). 

So in some other cases, where the subject of admission is usually authen- 
ticated and proved in a formal and solemn manner, and the existence of the 
fact includes legal considerations not likely to be understood by the party, 
better evidence than his simple oral admission is frequently required ; as, 
where a prisoner upon an indictment for bigamy has admitted the former 
marriage (/) ; for this, it has been held (g), does not supersede the neces- 
sity of formal proof of the first marriage. 

A mere voluntary affidavit is evidence against the party who makes it as 
a confession (A). So, as has been seen in some cases, a bill in equity is evi- 



(y) Lord Raym. 785. 

(z) Coombe r. Pitt, Bnrr. 1586 ; and 
Riffg V. Cvrgerwen, 2 Wils. 305. In both 
those cases the bribee was admitted to 
vote, which was held to be the strongest 
evidence of bis right to vote; but Lord 
Mansfield and the rest of the Conrt (Burr. 
lSdO)f held expressly, that a man who 
bad given money to another for his vote 
should not be admitted to say that he had 
no vote. 

(a) Bnrr. 2057. Qu. whether this is the 
same with the case cited 2 Wils. 399, un- 
der the names of Dr. Smith v. Miller ? 

(b) 2 Wils. 309. 

(e) Supra, YoL L tit Judicial In- 

flTBUlfBirTB. 

(rf) Per Le Blanc, J., Call v. Dunning, 
4 But, 53 ; Abbott v. Plumb, Dongl. 205. 
Bat it has been held, that a declaration by 



the lessor of the plaintiff in ejectment that 
he has assigned a lease is evidence of the 
fact Doe v. Watson, 2 Starkie's C. 230. 

(e) Doe V. Watson, 2 Starkie's C. 230. 
Bnt a party's admission of having exe- 
cuted a bond does not supersede the ordi- 
nary proof. Abbott v. Plumbe, Doug. 
205. 

(/) See tit. PoLTQAMT. So where the 
plaintiff in assumpsit liad admitted his 
discharge under an insolvent act, which 
was set up as a defence. See 3 Camp. 136. 
So an admission by the plaintiff at a 
tavern that he liad been discharged as an 
insolvent was held to be inconclusive, as 
comprising matter of law as well as of fiict. 
Summerset v. Adamson, 1 Blng. 73. 

(g) By Le Blanc, J., York Assizes. 

(A) Style, 448. Sacheverelv.Sacheverel, 
Bac. Ab. £v. 628. An answer to a bill in 



26 



ADMISSIONS, NATURE OF. 



dence against the complaiiuuit (t). So a paper written by a defendant, 
though signed by a third person, is evidence against him (A). 
Indirect In general an admission may be presumed, not only from the declaration 

admisgions. ^f ^ party, but even from his acquiescence or silence. As, for instance, where 
the existence of the debt, or of the particular right, has been inserted in his 
presence and he has not contradicted it So an acquiescence and endurance, 
when acts are done by another, which, if wrongfully done, are encroach- 
ments, and call for resistance and opposition, are evidence, as a tacit admis- 
sion l^at such acts could not legally be resisted (Q. 

Wheie notice to quit is served personally upon a tenant, and he makes no 
objection to the time specified in the notice, it is prmdfsune evidence of ad- 
mission and acquiescence (m) ; but if the party cannot, or does not, read 
the notice when served, no such inference can be made (n). 

Evidence of this class declines by gradual shades, from the most express 
and solemn admissions down to expressions and acts which afford but remote 
and weak presumptions as to the particular fact in question ; for it has 
already been seen, that the conduct of the party himself who knows the truth 
of the fact, or who may be presumed to know it, is always evidence against 
himself* 

An admission made for the purpose, as it is usually termed, of buying 
peace, is not allowed to be taken advantage of for the purposes of evidence. 



Chancery filed against the defendant by 
a straoger, may be read to show the ad- 
miMion of a particiilar fiust, though it is 
not evidence of a Judicial proceeding. 
Orant Y.Jaekton^htart, amdothiny Peake's 
C. 203. An answer in Chancery, stating 
that tlie defendant '' believes that H, M, 
was possessed of the leasehold premises 
mentioned in the bfil," is evidence against 
him in an action of ejectment brought by 
the executor of J7. M, to show that the 
testator had a chattel interest in the pro- 
perty. Doe d. BiQby v. Sie^^ 3 Camp. 
115. The holder of a bill overdue 
gives in a blank schedule under an insol- 
vent act This is not such an acknow- 
ledgment that the bill has been satisfied 
as will discharge the defendant, the ac- 
ceptor, i/iorf V. Newmaiiy 3 Camp. C. 13. 
See iZ. V. FentTthamy 8 T. R. 362. A let- 
ter by a party, in which he speaks of a 
ship as his own ship, does not conclude 
him firom showing that he used these ex- 
pressions as agent to a third person. TuH- 
fodhv.Ai|rrf,fiolfsC.i87. Inassumpait 
for a copyhold fine, the defendant is not 
estopped by the rent reserved by him on 
the premises from showing the real valne. 
Lord Verulam v. Howardf 7 Bing. 327, 
and 6 M. & P. 148 ; and see UaUon v. 
HaueU, 2 Str. 1042. 

(t) Vide (KtUet Vol I. Ind. tit Judicial 
Instruments. 

(k) Alexander v. Brown, 1 Cair. 288. 

(/) See the observations of AbboU, Ld. 
Ch. J. in Steel v. Prieketty 2 Btarkie*8 C. 
47 1 . If il . having title to premiMS in the 
possossion of J9., sulFer B. to make altera- 
tions iDconsistettt with such title, it is 
evidence to go to a jury of recognition of 



a. of the right of B. Doe d. WinekUy 
V. Pye, esq. Principal of Barnard's Inn, 
1 Esp. C. 364. And see Doe v. AUeriy 
8 Taunt 78. Covenant by a lessee that 
the lease shall become void if he become 
bankrupt, proof of his submission to the 
commission is evidence, without proving 
an act of bankruptcy. Boe v. Hodgoony 
West Bitt alter Easter Term, 1823, ear, 
Abbott, L.C.J. The drawer of a dis- 
honoured bill objects to pay the amount, 
on the gitwnd of his having reodved no 
consideration, but says noth^ concerning 
the indorsement ; his sUence in this respect 
is not an admissioa of the handwriting of 
the first indorser. Bwnoon v. QeolUy 1 
Camp. C. 100. Although what has been said 
in the presence of a party is admissible in 
evidence ibr the purpose of introdncing or 
expUdnfaig anything said by him, or even 
of raising an inference firom his sUence, 
the role does not apply to assertions or 
declarations made by a third person in the 
presence and hearing of a party on an 
inquiry before a magistrate on a penal 
charge, even although the party might if 
he had chosen cross-examined that thiid 
person or commented on his statement; 
for in such proceedings a regularity and 
order of proceeding is adopted whidi pre- 
vent a party from interposing when and 
how he pleases; and, consequently, the 
same inferences cannot be drawn from his 
conduct or his silence as in ordinary cases, 
itfi/et V. Androuit, 1 Mood. k. M. 336. 

(m) See Ejbctmbnt bt Landlord. 

(n) 7^ofiuud../<me«v.Tftoma«,2Camp. 
^50. i>oe V. i^oTf^er, 13 Bast, 405. Boe 
v. Briggey 2 Taunt 109. 



ADMISSIONS, NATURE OF. 



27 



since the offer may have resulted, not from a consciousness of the truth of 
the claim, but a desire to avoid litigation (o). And, therefore, where it ap- 
pears to be probable that such was the motive, the evidence is not admis- 
sible (p). But the offer of a sum of money by way of compensation is ad- 
missible, unless it be accompanied with a notification that it is made without 
prejudice, or is confidential {q). 

So an admitsioa made conditioaally, where the condition has not been Coaditiona] 
performed, or with reference to particular circmoMtances, or to the particu- »dini»8ioiw. 
far state of the pleadings, &c., is not admissible in evidence under different 
circumstances. It was once held, that admissions made upon a reference 
which turned out to be ineffectual, were not afterwards admissible ; but 
Lord Kenyon said, in a subsequent case, that this was going too far, and 
that he should receive all such admissions as the party would be compelled 
to make by a bill of discovery (r), and the arbitrator nay be called as a wit- 
ness to prove them. 

An agreement to admit a fact on the trml applies to every trial which 
the Court may direct (s). 

Admissions by a bankrupt upon an examination before commissioners Compul- 
are evidence against him, although he might have demurred to the ques- soiy admis- 
tions(f), because they might subject him to penalties. And so it seems are ^^^*' 



(o) 3 Esp.C. 113. B.N.B.896 1 Bsp. 
C. 143. 

(p) And therefore it is laid, that if A, 
ne B. for 1002., tnd J9. oSBsr to pay 90 /., 
it shall net be recelfed as evidence, for 
that oeitfaer admits nor asoertains any 
debt, and is ao more thaa saying he would 
give 90/. to get rid of the action ; bat 
tint if an aeooont consist of ten articles, 
and JB. admit that sach a one is dne, it 
will be good evidence ibr so much. 
Feake's Bv. 10, citing BolL N. P. 936. 
In the case of Waitbidge v. Kennutmy 
I Esp. C. 143, Lord Kenyon is stated to 
have held, that an admission or confession 
made pending and under the fidth of a 
treaty, and into which the party might 
have been led by the confidence of an 
expected compvomise, conld not be given 
in evidence to his pr^ndice; but that^ 
nnder soch cireamstanoes, the admission 
of a &et, soch as the handwriting of the 
party, which was not connected with the 
merits, might be received in evidence. 
Tlie rvle does not extend to an offer to 
refer, for that is not a concession Ibr the 
parpoeeof peace, Tkonuu v. AtiMeny 9 D. 
Sl R. SfiO; nor to a treaty which is con- 
ehided, FroffwM v. XJetoOfyn, 8 Ptioe, 
139. 

(q) WaUace v. Small, M. ic M. 446. 
HiU V. BUiott, 6 C. Jt P. 43a Watti v. 
Lawtonf lb. 447. The rule is applicable 
only to treaties for the purpose of ending 
suits which are not eventvaJUy brought to 
a conchision ; but does not apply to agree- 
ments perfected and executed, although 
the SQ^ectpmatter and olirjeots of such 
agreements may be a compromise of pre- 
viously existing differences between the 
parties. Froysell v. Lewelyn, 9 Pri. 199. 



The defendant was sned for work done 
on premises in the occupation of his tenant ; 
and upon an interview between the plaintiff 
and his attorney, the defendant and his 
tenant, it was agreed that the tenant out 
of the rent should pay the debt (which he 
accordingly did), and that the defendants 
should pay two-thirds of the costs ; this 
not being done, the plaintiff proceeded in 
the action. At the trial he ftlled in prov- 
ing the defendant's liability for the work, 
but relied on the arrangement so made as 
an admission of the debt Held (per Lit- 
tledale and Holroyd, J. J., diss. Bay ley, J.) 
that, if even it were admissible in evidence^ 
as being upon a negotiation for a compro- 
mise, it did not show an original right of 
action, although it might have been evl* 
dence to support a new ground of action 
on that agreement JUifU v. Hudson, S 
M. 8c Ry. 481. 

(r) Slack v. JBucAonan, Peake's C. 6. 
Gregory y, ffawardj 9 B»p,C.llZ. Doe 
V. JBkfons, 3 C. & P. 919. Turton v. Ben- 
son, 1 P. Wms. 496. Harmon v. Van^ 
haUon,^VenLl\l, Wsstlaiev, Collardf 
B. N. P. 93a 

(#) BUon V. LarJdns, 1 Ho. & R. lOa 
Although the attorney of the party retract 
it before the new trial. lioe v. Bird, 
7 P. & C. a 8o a special case settled on 
one trial, has been admitted as evidence 
on a seo<Nid. Van Wart v. WoUey, R. iu 
M. 6. 

{i) Smith V. Beadnall, 1 Camp. 30. 
Stod^h V. Be Tastet, 4 Camp. 10. OH- 
ling V. Summerset, cor. Abbott, Ld. C. J. 
West Sitt tSter Mich. 1823. Bobton 
V. Alexander^ 1 B. & P. 448. Although 
part only of what he swore was taken 
down. Miltoard v. Forbes, 4 £sp. C. 179. 



28 



ADMISSIONS BY PARTIES. 



By a party 
to the re- 
cord. 



all answers made by a witness in examination in a court of justice, although 
he might have objected to answering the questions (m). So is evidence 
given by the party in court, although he had no opportunity of entering 
into an explanation of the circumstances under which the fact took place (jr). 
So is evidence given under compulsory authority before a committee of the 
House of Commons (y). But a compelled admission is not evidence of an 
account stated (z). But it will be seen that admissions or confessions ex- 
torted by any kind of duress or threats are not evidence in criminal cases. 

The admission of a party on the record is evidence, although he be but a 
trustee for another, and although it appear from the admission itself that 
he is such (a). And, therefore, an admission by the obligee of an assigned 
bond, in whose name the action must necessarily be brought, is evidence to 
bar the action (b). And in an action by the consignor of goods, on behalf 
of the consignee against the captain, it was held that a letter written by the 
plaintiff was evidence against him (c). 

And an admission by one who sues as the assignee of a bankrupt, made 
before his appointment of assignee, is inadmissible against him in that cha- 
racter (<f). 

But the admission by a guardian, although he be the plaintiff on record, 
is not evidence against the infant (e) ; nor can the answer of the guardian 
in Chancery be read against the infant (f). 

In settlement cases, all declarations by rated parishioners are evidence 



It has been held that a bankrupt is com- 
pellable to answer questions by commis- 
sioners, on exaMilnation, which may sub- 
ject him to penalties for gaming or trading 
as a smuggler, or being a clergyman. Ex 
parte Meynolt, Atk. 200. JSx parte 
Barr, Cooke, 200. And that one who 
has money of the bankrupt's in his hands, 
must account for it, though he may sub- 
ject himself to penalties. Ex parte Symet, 
11 Yes. 521 Where the examination of 
the defendant is prim/t ya«t« admissible for 
the plaintiff, the opposite party cannot 
interpose evidence to qnalify or show that 
it was inadmissible, but it ought after- 
wards to be given as part of the defendant's 
case. 

(u) Ir^fra, 28. 

(x) CoUett V. Lord Keith, 4 £sp. C. 
212. 

(y) B. y. Mereeron, 2 Starkie's C. 360. 

(z) TtttkerY. Barrow,! B,&C,G2. 

(a) Bauermany, Radeniutfl T.B^eGS, 
This was an action by the plaintiffs, who 
were the shippers of goods on behalf of 
Van Dycke k Co., against the defendants, 
for the damaging of goods in the course 
of the carriage; and the question was, 
whether a letter from the nominal plain- 
tiffs, from which it appeared that Van 
Dycke & Co. were the real plaintiffs, and 
haid indemnified them, could be read, in 
order to prove an admission that the de- 
liBndants were wholly free from blame. 
The evidence was rejected upon the trial ; 
but the Court of K. B. were afterwards of 
opinion that the evidence ought to have 
been admitted, on the ground that the 
plaintiff in a cause must be considered as 



having an interest in the action ; and 
Lawrence, J. observed, that he had looked 
into the books, and could not find one 
case in which it had been held that an 
admission by tlie plaintiff on record was 
not evidence. See Gihton v. Winterf 6 B. 
& Ad. 96; Salk. 260. Payne v. Bogere, 
Bougl. 407, where the tenant, a nominal 
plaintiff, having given a release to the de- 
fendant, the Court ordered it to be given 
np on an application by the landlord. See 
Craib v. ITAeth, 7 T. R. 670, in note. In 
Buller^s N. P. 237, it is laid dovma, that the 
answers of a trustee can in no case be 
admitted as evidence against a eegtui que 
trust. 

(b) Craib v. ITAeth, 7 T. R 670, hi the 
uote. 

(e) 7 T. R. 668. See note (a). 

(d) FentDick v. Thornton, M. & M. 61. 

(e) Bggletton v. Speke, 3 Mod. 258. 
Cowling v. Ely, 2 Starkie's C. 366. See 
James v. Hatfield, 1 Str. 548. 6o an ad- 
mission by a proehein ami is not evidence 
against an infant. Webb v. Smith, 1 Ry. 
&. M. 106. It was held by Lord £ldon,in 
Daviet v. Ridge, 3 Esp. C. 101, that in an 
action against two trustees, an admission 
by one ti^t he had trust property in his 
hands vras not evidence of the fact against 
the other. 

(/) Eggleston v. Speke, 3 Mod. 258. 
For by the opinion of the Court of K. B., 
on being consulted by the Judges of C. P., 
upon a trial at bar, the answer of the 
guardian is but to bring the infant into 
court. See Carth. 79 ; 2 Vent. 72 ; Lord 
Raym. 312; Prec. Ch. 220; 1 P. Wms. 
344 ; 3 Bac. Ab. 148 ; 3 Bro. P. C. 1. 



ADMISSIONS BY THIRD PERSONS. 



29 



against the parish, for they are parties to the cause (g). And it is not 
necessary to show previously that the party has refused to be examined (A). 
But an admission by a corporator is not eridence in actions against the 
corporation (i), unless it be made in an official capacity. 

So the admissions of the party really interested, although he be no party By party in 
to the auit, are evidence against him ; for the law, with a view to evidence, interest. 
regards the real parties. Thus, in an action upon a bond conditioned for the 
payment of money to Z. D., it was held, that the declaration of X. D, that the 
defendant owed nothing, was evidence for the latter (i(). So in an action on 
a bill of exchange, for the benefit of another (/). So the declaration by the 
under-sheriff, in matters relating to the execution of the office, is evidence 
against the sheriff, since he is the responsible person (m). So it is where 
the party interested indemnifies a party to the record (n). So in actions 
upon policies (o), the declarations of the parties really interested are admis- 
sible. So, in an action by the master for freight, is the declaration of the 
ship-owner (p), where the action is brought for his benefit. So where the 
party in the action is indemnified by another ; as when the sheriff is in- 
demnified by a third person, the declarations of that person are evidence 
against the sheriff (9). Where a defendant in trover for a deed admitted 
that he detained it on the request of another, it was held that the declarations 
of the latter were properly received (r). 

An admission or declaration by a third person is, upon principles already By third 
adverted to, in general inadmissible. It ceases to be so, where the party P*"<*^' 
making such admission or declaration can be considered as identical in 
interest and authority with the other, or to be his mere instrument or agent ; 
since, if a man authorize another to make a declaration, it is the same thing 
in reason and in law as if he had made it himself. 

Where a party refers to another for an answer on a particular subject. By an 
the answer is, in general, evidence against him, since he makes the referee ^^^^^' 
his accredited agent for the purpose of giving the answer. The defendant 
in an action for goods sold and delivered, said, '^ If Coomes will say that lie 



ig) JR. V. Whitley Lower, I M. & S. 
036; 11 Bast, 578. R. v. Wohum, 10 
BaBt, 306, 402. And therefore a rated 
inhabitant could not be examined by the 
adverse party. But now see the stat. 
M Geo. 3, c. 170. 

(A) 1 M. & S. 636. 

(t) Maifor qf London v. Long, 1 Camp. 
33. Ma^^ of London v. JoU\ffe, 2 Keb. 
205. Lord Dorset v. Ceaier, 3 Keb. 300. 
R, V. City of London, 1 Vent. 351 ; S Lev. 
231 ; 1 Vent. 254 ;2 Vem.351. Videetiam 
Duke V. Aldridge, 11 Bast, 584, n.; 7 
T. R. 665. If^ra tit Parties. 

{k) Hanson v. Parker, 1 WUs. 257. 

(0 Welttead v. Leoy, 1 Mo. k, R. 138. 
So as to the dechiratlon of a party fhnn 
whom the plaintiff received a bill or note 
where evidence, Beauehamp v. Paey, 1 B. 
& Ad. 80. 

(m) YabsleyY.Doble, Lord Baym. 190, 

(n) Dowden v. Fowle, 4 Camp. 38. 
The action was brought against the sheriff 
for a fidse return, and was defended by the 
assignees of the execution debtor ; and it 
was held that the declaration of one of 
them (being petitioning creditor), tliat the 



debt did not amount to 100 Z., was admis- 
sible in evidence. See also Young t. Smith, 
6 £sp. C. 121. 

(o) In, Bell V. Ansley, 16 East, 143, 
Lord Ellenborough observed, though an 
action on a policy may be brought in the 
name of the person who effected it, though 
he be not the person actually interested, 
yet the persons interested are so far looked 
upon as parties to the suit, that the decla- 
rations of any of them are received as ad- 
missible evidence against the plaintiff, 
and what would be a defence against them 
would, in many instances, be a defence 
against the plaintiff. 

(p) Smith V. Lyon, 3 Camp. 465. 

(q) Duke V. Aldridge, cor. Lord Mans- 
field, cited in Baxunnan v. Radenius, 7 
T. R. 665. Supra, notes (m) and (n). 

(r) Harrison v. Vallance, 1 Bing. 45, 
and see Robson v. Andrade, 1 Starlde's C. 
372. But yet the mere fact tliat a party 
has acted as the agent of another, is not in 
general sufficient to let in evidence of the 
declarations of the principal, unless he has 
indemnified the agent. Thus a declantioa 
by a party under whom a defendant in re- 



30 



ADMISSIONS BY THIRD PERSONS. 



did deliver the goods, I will pay for them/' Upon the trial' it was proved 
that CoomeSj on application to him, did say that he had delivered the goods^ 
and the evidence was held to be admissible («)• So where an executor referred 
a creditor of the testator to J. & for information concerning the effects of the 
testator, it was held that an adnussion of assets by J. S, was conclusive upon 
the subject (<X ^9 ^ general, what an agent says, who is employed by 
another to make a proposal for him, is also evidence against the latter (11). 
So an admission by an agent, in the course of transacting the business which 
he is appointed to perform by the principal, is, in general, evidence against the 
principal (x). But in such case it is necessary to prove the authority, either 
expressly or impliedly, as by showing what the usual mode of dealing has 
been (y) ; for an agent cannot bind his principal, either by act or declaration, 
beyond the scope of his authority (2). 

But it seems to be a general rule, that what an agent does or says within 
the scope of his authority, is binding upon the principal, whose instrument be 
is ; so that not only an agreement made by an agent is binding upon the 
principal, but so are all the declarations of the agent at the time,i, which in * 
any manner affect or qualify the nature of the agreement (a) ; but what the 
agent says at another time, and of his own authority, ia not evidence against 
the principaL 

The act or admission q£ an under-eheriff accompanying official acts, is, in 
general, obligatory upon his principal, the sheriff, because he is notoriously 
the agent of the sheriff for transacting all that appertains to the office, and 
he indemnifies the sheriff, and consequently by his admission charges him- 
self (6) ; but the authority of a bailiff, who b not the general officer of the 



plevin makes cognizance, is not evidence 
for the plaintiff. Hart v. Home, 8 
Camp. 02. 

(#) DanUl V. Pitty % Camp. 966, hi 
note, cor. Ld. Ellenborougli. And see 
Stevens y. TAocAer, Peake's C. 187. Gof 
nett V. BaU^ 3 Starkie's C. 160, 1 M. 
& W. 438. 441. The plaintiff's hone 
having been ii^ared through alleged neg- 
ligence on the part of tlie defendant, in not 
fencing a sliaft, the defendant agreed to 
pay if a miner jnry would say that the 
shaft was his ; held that their so finding 
was admissible but not conclusive evi- 
dence for the plaintiff. Syhray v. Wh^e, 
1M.&M.495. 

(0 Wmiwm V. JMiief, 1 Camp. 364. 
If a party declare that he will be bound 
by the oath of a tliird person, and that 
person makes the oath accordingly, it is 
binding. Per Bayley, J., Trin. T. 1885 ; 
and see Uoyd v. WUUm, 1 Esp. C. 178; 
Godbolt, 201; SI Hen. 6, fb. 31, pi. 17. 
il. takes a forged note from B. ; on its being 
returned, B. says he received the note 
from C, to whom he refers A. ibr infor- 
mation. CJh statement is evidence against 
B. ; Br^h v. Kent, 1 Camp. C. 366, n. 
The holder of a bill agrees not to sue the 
drawee, provided the latter will make an 
aiAdavit that the acceptance is a forgery. 
If the affidavit be made, though fblse, the 
holder is ooackided, Steven* cmd another 
V. Thaeker, Peake*s C. 187. See Brayne 
V. Bealy 3 Lev. 840, 841. The defendant, 
in reply to inquiries respectiag the account. 



referred to a party who he said was pos- 
sessed of his sentiments, and referred the 
inquirer to him tliereon; held to be a snffl- 
cioit acknowledgment of him as an agent 
to make his dedaratioq as to the account 
bfaidfaig, Hood V. Beeoey 3 C. ft P.. 638. 
And see tit, Aobict. 

(ti) Oainrford v. Grammar, 1 Camp. 9 ; 
and where the agent vras the attorney em* 
ployed by the party, an authority for 
making the proposal was presumed. Ibid. 

(x) For the cases relating to this point, 
and the various distinctions upon tlie sub- 
ject, see tit. AoBHT. 

(jf) Ibid. And see 7 T. R. 688. 

(2) Fenn v. Harrieon, 3 T. K. 767. A, 
being the agent of two companies, B.kC, 
makes an admission as the agent of jB. ; 
this is not evidence against C. ; Outkrie v. 
Fishsr, 3 Starkie's C. 151 ; and see tit. 
Limitations; and Atkins v. Tredffotd^ 
8 B. ft C. 83. 

(a) See Aobnt. And see PaUtkorp v. 
Furnish, 3 Esp. C. 61 1 ; Helyar v. Hawke, 
6 Bsp. C. 74; P^o v. Hague, 1 Esp. C. 
136 ; Alexander v. Gibson, 8 Camp^ 666. 
Action against A, and B. as owners of a 
ship ; an undertaking to appear for them, 
given before the commencement of the 
action, by the person who subsequently 
acted as their attorney in defending it, in 
wliich he describes tliem as owaers, is evi- 
dence of ownersliip. Marshall r. Cliff, 4 
Camp. 133. 

{b) Yabsky v. Doble, Lord Raym. 100. 



ADXISglOKS BT THIRD PBB80K6. 



31 



sheiiffy muet be piored in every particular case, and then his deolaratioiui 
in the eoarse of his agency are evidence (e). In Bigps v. Lawrence {d)y it was 
lield at Niei Prnu{e\ that where A. had ordered goods of B.y to be delivered 
to Cy an acknowledgment, in the hand-writing of C, of the delivery, was 
evidence against A. (/). But the same point was frequently ruled diflPerently 
by Lord Kenyon(^); and the case was afterwards decided upon another 
groundy viz. the illegality of the contract. And the admission of the under- 
sheriff is not admissible unless it accompany an official act, or unless he 
charge himselfy being in fact the real party in the cause (A). 

A community of interest or design will frequently make the declaration Community 
of one the declaration of all. Thus in the case where partners, or others, of interest. 
poesess a community of interest in a particular subject, not only the act and 
agreement, but the declaration of one in respect of that subject-matter, is 
evidence against the rest (t). The admission of one of several makers of a 
joint and several promissory note, that it has not been paid, is evidence 
against all (A). Such an admission, however^ ought to be clear and unequi- 
vocal. 

A declaration by one partner, concerning a subject of joint interest, is Partner. 
evidence against another, although the former be no party to the suit. 
Thus in an action against some of the members of a firm, the answer of 
SAother person, proved to be a partner, was admitted in evidence as an 
admission against all (/). 

An admission by one partner, after the dissolution of the co-partnership, 
13 evidence to charge the other partner (m) ; but a declaration made by one 
of two partners during an existing co-partnership is not evidence to bind 
his partner as to a transaction which occurred previous to the partner- 
ship (n), nnless a joint responsibility be proved as a foundation for such 
eridence (o). So a declaration made by one partner that he contracted on 
his own sole account, is evidence against all the partners, to the exclusion 
of their joint action (p). Entries in a book kept by the clerk of an incor- 



(e) NcTthy.MUeiyl Gamp.889. Bow- 
Aer V. Col^, 1 Camp. 301. See tit 



(4i) 8 T. R. 454. 
(€) By Boiler, J. 

(/) Hie case Is wrongly abstracted in 
the mai^al note, 3 T. R. 464 ; the agent 
was not employed to huy goods. Q^. 
whether the receipt was given at the time 
of the delivery ? In the case of Fairlie v. 
Hastmg$, 10 Yes. jnn. 123, this point was 
treated by the Master of the Rolls as a 
very ynatorUl one. It is difficalt to con- 
ceive how any authority to a person to re- 
ceive goods for another can make the mere 
admission of the latterevidence against the 
owner. No such aathority is necessarily 
to be implied, nor will the fact that it was 
made against the interest of the party re- 
ceiving, make his receipt or declaration 
evidence, where his testimony may be had ; 
neither, as It seems, will the circumstance 
that the receipt was given at the time of 
delivery, nKske any material difference in 
prtadptey for such evidence would be ad- 
mitted not to explain the nature of a par- 



tienlar iact known to have occurred, but to 
prove the exutence of the act itself. 

(g) See 7 T. R. 668: DongL 751. 

(h) StunobaU v. Goodrick, 4 B & Ad. 
541. 

(i) 11 £ast,580»per Le Blanc, J. Where 
a suit is pending against a great number 
of persons who have a common interest in 
the decision, a declaration made by one of 
those persons concerning a mateiial &ct 
within ids knowledge, is evidence against 
him and all the other parties to the suit. 
See tit Abatbmbnt ; Lucas and others 
y.Dela Caur, 1 M & S. 248. 

(k) Whitcomb v. Whiting^ Doug. 652. 

{I) Wood V. Braddieky 1 Taunt 104. 
Grant v. Jackson, Peake*8 C. 203. Nichols 
V. Dowding, Starkie's C. 81 ; and see 
iirem62e V. Farren, 3 C. & P. 523. SeeUt 
Limitations. — Partnees. 

(m) Wood V. Braddickf 1 Taunt 104. 

(n) Catt V. Howardf Guildhall Sittings 
after Hil. T. 1820, cor. Abbott, L. C. J. 
3 Starkie's C. 3. Priichard v. Draper, 
I Buss. & M. 191. 

(o) Ibid. 

Ip) Lucas v. 2>€ la Cour, 1 M. & S.249. 



32 



ADMISSIONS BY THIRD PERSONS. 



By a wife. 



poTAted company were held to be inadmissible against a member of the 
corporation in an action on a contract with him, although the act of incor- 
poration directs the clerk to keep such a book ; for the ground on which 
partnership books are admissible in evidence against partners is, that they 
are books kept by themselves, or by their authority ; but the clerk of the 
company, once appointed, was not subject to the control of any individual 
member (q). 

In an action of covenant against two, it was held that the voluntary affi- 
davit of one, upon a subject in which he was jointly interested with the 
other, was evidence against the other (r). 

But an admission by one of several trustees, who are not personally 
liable, will not bind the rest («). 

But, notwithstanding a conmiunity of interest, the declaration of the wife 
will not, in general, bind the husband. Even in an action by the husband 
and wife, in right of the wife as executrix, her declaration will not be evi- 
dence (t). So where wages had been earned by the wife, it was held that 
her admission of the receipt of 20^ was not evidence against the hus& 
band (m). So an admission by the wife, of a trespass, cannot bind the 
husband (x). So the answer of the wife in equity cannot be read against 
the husband (y) ; for the wife is not, in general, considered to be invested 
with power to act for her husband, and consequently to bind him by her 
declarations. But where the authority of the wife to act as agent to her 
husband can be presumed (z), her declarations are like those of any other 
agent ; accordingly, the admission of the wife as to an agreement for suck- 
ling a child, was held to be evidence (a) against him. So where an action 
was brought by the direction of the wife, in the name of her husband, to 
recover a sum of money which had been taken from her on suspicion that 
it was the produce of stolen property, it was held that what she had said 
(in the absence of the husband) respecting the money, when examined on a 



(q) HUl Y. Tke Mtmehetter and Sdfford 
Waterworks Camp.y 5 B.&; A. S66. 

(r) Vieary'i CoMCy Bac Ab. £v. 623. 
Bnt an admission by one part-owner of a 
ship does not bind another part-owner. 
Jaggen v. Binningtf 1 Starkie's C. 64. 
And it has been held, in an action against 
two partners on a deed purporting to have 
been executed by one for ie^f and partner, 
that an admission by the other that be had 
given authority to his partner to execute 
on his behalf, is not sufficient without pro- 
ducing the authority. SteglUz v. Egging^ 
ton, Holfs C. 141. 

{s) Damt V. Kioge, 8 Esp. C. by Lord 
Eldon. But in an action against a corpo- 
nition,a declaration by a mere member not 
relating to any official situation is not ad- 
missible. Mayor qf London, jpc. v. Longy 
1 Camp. 22. 

(0 Alban and othen v. PrUehett, 6 T. 
R. 680. In an action by the husband and 
wife for assaulting the wife, the defendant 
justified the turning the wife out to obtain 
possession of the plaintiff's house ; it was 
held by Parke, B. that a declaration by the 
wife as to the terms of the agreement under 
which the husband held as tenant were 
inadmissible. Newton v. Harland, York 
Summer Ass. 1 837. The Joint answer of a 



husband and wife cannot be read in eW- 
dence against the wife. Hodson v. Merett, 
9 Price 556. In an action by the husband 
and wife to recover a loan by the wife, 
dum tola, a declaration by her during co- 
verture was held to be inadmissible, Kelip 
V. Small, 2 Esp. C. 716. But in an action 
against the defendant as administrator of 
his wife, for money lent to her before mar- 
riage, her admission of the debt during co- 
verture was held to be admissible. Hwnh- 
phreut V. JBoyce, 1 Mo. & M. 5240. 

(tt) Hall V. HiU, 8tr. 35; P. WIU. 175, 
Bac. Ab. Ev. 622. 

(*)7T. R.112. 

ly) 3 P. Wms. 238 ; Salk. 350 ; Vem. 
60.109,110. 

(z) Held that the Jury might infer au- 
thority from two instances of her appearing 
to conduct his business relative to the 
transaction in question at his country house. 
Palmer v. Sells, 3 N. & M. 422. 

(a) Str. 527. See also Emenon ▼. Blon^ 
den, 1 Esp. C. 141, and iitfra tit Aobvt ; 
and Anderson v. Sanderson, 2 Starkie's C. 
204, where the admission of the wile as to 
a sum due for articles supplied to the shop, 
of which she had the sole management, was 
received. 8. P. Clifford v. Barton, 1 
Bing. 199< 



ADMISSIONS, BY THIRD PERSONS. 



33 



charge of being concerned in the robbery, wa« evidence for the defendant (b). 
So in an action against the husband for goods sold to his wife (c) during 
the time when he occasionally visited her, it was held, that a letter subse- 
quently written by the wife, acknowledging the debt, was evidence. 

The rule, that where there is a community of interest and design, the By a con- 
declaration of one of the parties is evidence against the rest, is not confined spirator. 
to eases of civil contract. It is indeed true, that in general the declaration 
or admission of one trespasser, or other wrong-doer, is not evidence to affect 
any other person, for it is merely res inter alios acta ; but where it has once 
been established, that several persons have entered into the same criminal 
design, with a view to its accomplishment, the acts or declarations of any 
one of them in furtherance of the general object are no longer to be consi- 
dered as res inter alios with respect to the rest ; they are identified with 
each other in the prosecution of the scheme ; they are partners for a bad 
purpose, and as much mutually responsible as to such purpose, as partners 
in trade are for more honest pursuits ; they may be considered as mutual 
agents for each other. Where an un<ty of design and purpose has once been 
established in evidence, it may fairly and reasonably be presumed that the 
declarations and admissions of any one, with a view to the prosecution and 
accomplishment of that purpose, convey the intentions and meaning of 
all (d). And this seems to be the general rule, in case of trials for conspi- 
racies, and other crimes of a like nature («). . 

An admission by the party represented is usually admissible in evidence Against a 
against the representative (/). representa- 

An admission by the owner is sometimes evidence against one who claims 
title through him (^). 



(b) Carey v. Adkins, 4 Camp. 92. 

(e) PaUtharp r. Furnish, 2 Esp. C. 
811 ; 5 Esp. G. 145. Gregory v. Parker, 
1 Camp. 594. 

(d) See Lord Ellenborough's obsenra- 
tions, 11 East, 584, iif/Va, tit Trespass. 

(e) See tit Conspzract. — Bankrupt. 
(y) See ExBcuTOR. — Bankrupt. — Au 

admission made by a bankrupt before his 
bonkmptcy, is eTidence to charge his estate 
with a debt P. C. 5 T. R. 518. Sectu,Wi 
to subsequent admissions. So admissions 
made by an iosolveot subsequ'^nt to his in- 
solvency, are not admissible against the 
trustees of his estate. Smith ▼. Simmes, 
1 Esp. C. 330. In an action against trus- 
tees for creditors, a declaration of tlie debtor 
is evidence of the plaintiff's debt. Robwn 
▼.^m^<u2e,18Urkie's 0.372. Note.—The 
declaration seems to have been made at the 
time the trust was created. So in an action 
against the sheriff for escapes, &c. See 
tit. Shbrifp. Kemplund v. Macauley, 
Peake's C. 65; and see Ihfhe v. Aldridge, 
7 T. R. 605 ; 11 East, 584, n. In an action 
against the sheriff for a false return of nulla 
hina, where tlie defence relied upon is an 
act of bankruptcy overreaching the levy, the 
plaintiff may give in evidence an admission 
Biade by one of the petitioning creditors as 
to any fact respecting his debt. Young v. 
Smithy 6 Esp. C. 121. To prove a bill of 
sale, fraudulent declarations made by the 

VOL. II. 



vendor at the time qf executing it, are 
evidence, Phillips v. Earner, 1 Esp. C. 
357. Secus, of declarations made at any 
other time. Where the defence to an 
action against an acceptor is, that after 
the bill was due the amount was settled 
in account between himself and the then 
bolder, under whose indorsement the 
plaintiff claims, the declarations of such 
holder are not evidence, as he might be 
called and examined. Duekliamy. Waif is, 
5 Esp. C. 251 ; and see tit. Bill op Ex- 
change. A. indorsed a bill to J9. as a se- 
curity for a running account ; B., after the 
bill became due, indorsed to C; an entry 
or declaration by B. respecting the state of 
his account with A. is not evidence for tlie 
latter unless made contemporaneously with 
the first indorsement. Collenririge v. Far- 
quharton, 1 Starkie's C. 251) j Cutler v. 
Newlin, cor. Holroyd, J., Wiucli. Spring 
Ass. 1819; Manning's Ind. Evidence, 253; 
and see Bacon v. Cfiesney, 1 Starkie's C. 
192. An admission in an answer by a for- 
mer owner of property, dopH not bind a sub- 
sequent owner. See tit. Answkr in Equi- 
ty. Gully V. Bishop of Ercter, 5 Biugh. 
note (tt). Appx. to St. Tr. 29 Hargrave's 
edit, and 6 St Tr. 425. 

((7) See Ivatt y. Finch, 1 Taunt 141; 
also siijtra Vol. Land Index, tit. Hear- 
say EviOENCE. An admission by a pro- 
prietor or an occupier possessing an in- 

D 



34 



▲ Dl[IS3IO>'S, 



Tbe wiiole 
Is tobe 
read. 



AAmvnnn 
under rale 
of 2WaL 4. 



An admusion by the debtor is eridence against the sheriff, in an action 
for a hlse return or escape (A) ; but this, it seemsy is by reason of the sheriff's 
misconduct. 

An admission by the principal is not evidence against his surety on a 
contract (i). 

It is a general rule with respect to admissions, as it is in all other cases, 
that where an entry or declaration is entire, and one part is capable of 
being explained and qualified by another, the whole is to be taken as eri- 
dence (&). What credit is to be gtren to the whole, or part, is a question for 
the consideration and discretion of the jury ; and therefore where a party 
has admitted the claim made by another, but at the same time has made a 
counter-claim, his statement of a counter-claim is eridence to be left to the 
jury, as to the existence of such counter-claim (/). 

By the General Rules of Hilary Term, 2 Will. 4, it is ordered that the expense 
of a witness, called only to prove the copy of any judgment, writ, or other 
public document, shaU not be allowed in costs, unless the party t^^^i^g him 
shall, within a reasonable time before the trial, have required the adverse 
party, by notice in writing and production of such copy, to admit such copy. 



terest, is ftvqoently endence as to the na- 
ture and extent of the mterest, especially 
if it be eooneeted with any act relating to 
the enjoyuieDt. An adnuMion by a former 
oecnpier of a tenement in respect of which 
eoDunon Is chimed, is, it Is said, evidence 
to negative the existence of the right, 
though the tenant be alive. WaUtgr t. 
Bradttoekj 1 Esp. C. 458; and see Doe d. 
Human v. Pettet, 5 B. & A. 223 ; Bag- 
fftdey V. Jonetj 1 Camp. 967. Vol. I. and 
Woolway v. Rtntty 1 Ad. & EIL 114. Bnt 
an admission made by one who takes abank- 
mpf 8 goods in execution, that he knew 
that an act of bankruptcy had been com- 
nitted. Is not evidence against one who 
takes the g^oods by assignment from the 
riierifl^ the admission being subsequent 
to the assignment. Dtady v. Harrison^ 
1 Staikle^s C. 60. And as to a declaration 
by the holder of a negotiable security, 
vide tt^firOj Bill op Exchaxgb. Com- 
peiencff. To prove a forfeiture by under- 
letting, declantions of persons found in 
possession were admitted In evidence 
against the lessee. Doe d. Hindley v. 
2?tcAar&y,5 Esp. C. 4, eor. Lord Alvanley, 
§edqtutre. 

(A) Jr{/ra, tit. Sheripp. See tit Rxs 
iiTTER Altos. 

(i) Iftfra. tit. BcxBTT. Hart v. Horn, 
« Camp. 92. See Perehard v. TimltUl, 1 
Esp. C. 304. Jpjra, tit. Rbplbvix. 

( k) Bandle v. Blackburn, 5 Taunt. 245. 
Smith V. Young, 1 Camp. 439. Jacob v. 
lAndMoy, 1 East, 462. BarryfMore v. 
Taylor, 1 Esp. C. 325. Green v. Dunn, 3 
Camp. 215. So In an answer in Chancery, 
If a party charge and discharge himself 
contemporaneously. Smith v. Lumbe, 7 
Ves. 588. Where the only evidence against 
a party charged with murder, was his own 
confession, which admitted that he was 
present at the time, but took no part in the 



transaction; It was held that the whole was 
evidence for the prisoner, but that tiic jury 
nigfat disbelieve any part. R. v. Cleioer* 
4 C. & P. 221. Bom v. Savory 2 Bing. 
N. C. 145. A prosecutor gives in evidence 
the statement of the prisoner, which is 
excnlpatoiy; it is not therefore to be takfla 
as true, bat it is for the juzy to say if they 
think it consbtent with the other evidence. 
Bex V. Steptoe,4C. k P. 397. The pro- 
secutor offers evidence of what was said 
by the prisoner before the justice; it is 
evidence as well for as against him, it is for 
the jury to say under the drenmstaneea 
whether they believe it or not. Smnih v. 
£teiMfy,lRy.&M.C.275. B.T.HigginM, 
3 C & P. 609; Cra^ v. HalU, lb. £q. 
C. Ah. 10; Thomum v. Lumbe^ 7 Ves. 
583 ; Bidffua^ v. Daummy 7 Yes. 404. 
Giving credit in a particular^ forademand 
of the opposite party, is not an admission 
of the debt. MUUr v. Joknmmy 2 Esp. 
C.602. Under a rule oftheCourt to admit 
a notarial copy of the oondenmation of a 
vessel in evidence, such copy only esta- 
blishes the fact of the condemnation, and 
is not evidence of the particular defects 
upon which the condemnation puri'orts to 
be frrounded. Wright v. Barnardy 2 Esp. 
C. 700. The plaintiff cannot give In evi- 
denee the examination of the defendant 
taken before Commissioners of Bankrupt 
on one day,withoot also reading those taken 
on another day, 5 Sim. 39. Nor can he 
give the cross-examination of a defendant 
In evidence, without reading his exami- 
nation in chief, lb. It Is otlMrwise where 
the answer of a witness In equity is put in 
to shew his Incompetency, B. N. P. 238. 
And see 2 Vent. 171; Com. Dig. £vi- 

DBNCB,[B.] 6. 

(/) Bandle v. BUukbumy 6 T^unt. S45. 
Thompion v. Ataten, 2 D. & R, 361, and 
see note {k) and VoL 1. 



BY RULE OF COURT. 



35 



and unless such adverse party shall have refused or neglected to make such Admission 
admission. under rule 

And it is further ordered, that the expense of a witness called only to ^'^^^^^"•^ 
prove the handwriting to or the execution of any written instrument stated 
upon the pleadings, shall not be allowed, unless the adverse party shall, 
upon summons before a Judge^ a reasonable time before the trial (such sum- 
mons stating therein the name, description, and place of abode of the intended 
witness), have neglected or refused to admit such handwriting or execution, 
or unless the Judge, upon attendance before him, shall indorse upon such 
summons that he does not think it reasonable to require such admission. 

And by a General Rule of Hilary Term, 4 Will. 4, it is ordered that either 4 Will. 4. 
party, after plea pleaded and a reasonable time before trial, may give notice 
to the other, either in town or country, in the form thereto annexed, marked 
A., or to the like effect, of his intention to adduce in evidence certain writ- 
ten or printed documents, and unless the adverse party shall consent (m), by 
indorsement on such notice, within forty-eight hours, to make the admission 
specified, the party requiring such admission may call on the party required, 
by summons, to show cause before a Judge (ii) why he should not consent to 
such admission, or in case of refusal be subject to pay the costs of proof. 
And unless the party required shall expressly consent to make such admis- 
sion, the Judge shall, if he think the application reasonable, make an order 
that the costs of proving any document specified in the notice, which shall 
be proved at the trial to the satisfaction of the Judge or other presiding 
ofiSeer, certified by his indorsement thereon, shall be paid by the party so 
required^ whatever may be the result of the cause (o). 

Provided that if the Judge shall think the application unreasonable, he 
shall indorse the summons accordingly. 

Provided also, that the Judge may give such time for inquiry or examina* 
tion of the documents intended to be offered in evidence, and give such 
directions for inspection and examination, and impose such terms upon tlie 
party requiring the admission, as he shall think fit. 

If the party required shall consent to the admission, the Judge shall order 
the same to be made. 

No costs of proving any written or printed document shall be allowed to 
any party who shall have adduced the same in evidence on any trial, unless 
be shall have given such notice as aforesaid, and the adverse party shall 



(m) In the notice of intention to produce 
documents in the form prescribed by the 
rule, one of them was described as a counter- 
part of a lease fix)m £, T, to the defendant, 
date 26 December 1829. The order was. 
Take order by consent for admitting all 
bnt the three wills, &e. The plaintiff 
prodnced on the trial an instmment in the 
form of a lease from, and executed hyJB.T.f 
and also executed by the defendant, indorsed 
'* eonnterpart **, and having a II. 1 «. stamp, 
which was sufficient for a counterpart but 
not for a lease, and it was held that the effect 
of the admission was, that a document had 
been executed of a character corresponding 
with that in the notice, and that the defend- 
ant could not object that the instrument 
was in effect a lease and not a counterpart ; 
and it was held that proof was unnecessary 
of the identity of the document produced at 



the trial with that inspected at the J udge's 
chambers. Doe v. Smith, 8 Ad. & £11. 
255. 

(n) The application must be made to 
a Judge at chambers ; the Court have no 
authority under this rule. Smith v. 
Bird, 3 Dowl. 641 ; Jervis's New Rules, 
111. 

(o) Tfotice having been given, and ad- 
mission refused, and a Judge's order liaving 
been made, certified by his indorsement, 
that the documents were produced to his 
satisfaction, the party is entitled to costs, 
although a new trial is granted, previously 
to which the documents are admitted. 
Letds V. Howell, 6 Ad. & Ell. 769. The 
certificate in such rose is to be granted 
by the Judge presiding at the first trial, 
lb, 

D 2 



ConfeMions 
In crimiDal 
cases. 



36 ADMISSIONS, IN CRIMINAL CASES. 

have refused or neglected to make such admission, or the Judge shall have 
indorsed upon the summons that he does not think it reasonable to require it. 

A Judge may make such order as he may think fit respecting the costs of 
the application, and the costs of the production and inspection ; and in the 
absence of a special order the same shall be costs in the cause. 

A confession, where it is voluntary, is one of the strongest proofs of guilt; 
for it cannot be supposed that a person really innocent would vobtntarify 
subject himself to infamy and punishment. Many of the rules applicable to 
admissions in civil cases are applicable to those in criminal proceedings, but 
there are some which are peculiar to the latter (p), 
Toluatary. A confession can never be received in evidence, where the defendant has 
been influenced by any threat or promise (q). To say that it will be better 
for him if he will confess, or worse if he will not, is sufficient to exclude the 
consequent declaration by the prisoner ; for the law cannot measure the 
force of the influence used, or decide upon its effect upon the mind of the 
prisoner, and therefore excludes the declaration, if any degree of influence 
has been exerted (r). And where a confession has once been induced by 
such means, all subsequent admissions of the same or of the like facts, must 
be rejected, if they have resulted from the same influence («). It is, however, 
a question for the court, and not for the jury, to decide, whether under the 
particular circumstances the confession be admissible (t). The general prin- 
cipal on which the decisions on the subject seem to have proceeded, seems 
to be this, that if under the circumstances there be reasonable ground for 
presuming that the disclosure was made under the influence of any promise 
or threat of a temporal nature, the evidence ought not to be received (« ). 



(p) As to the effect of coofessions in 
eases of treason, see Treason. 

(q) IVarrichshairs Case, Leach's C. C. L. 
3d edit. 298; Cowp. 334; 2 Haw. c. 46, 
8. 36. Two men were charged with the 
murder of one who (as it afterwards ai>- 
peared) was still liviod^, and yet one of 
them npon a promiae of pardon, confessed 
himself to be guilty of the crime. Note 
to WarrieJuhairs Case, Leach's C. C. L. 
901, dd edit. And an instance is men- 
tioned in the State Trials, where not only 
the party himself, but his brother were 
executed on a supposed confession, although 
all the parties were innocent. 

(r) A promise made bj tlie surf^eon who 
was called in upon a case of administering 
poison, after telling the prisoner that she 
was suspected and liad better tell all she 
knew, was held to render the statement of 
the prisoner inadmissible. JR. v. King^ 
Hon, 4 C. & P. 387. So after a threat by 
the captain of a ship to the prisoner, a 
mariner on board, upon the stolen property 
being found, that if he did not tell him who 
was his partner he would commit him to 
prison as soon as he got to N. JR. v. Paratt, 
6 C. & P. 570. 

(#) By the Judges, in the case of Sarah 
Nute, Mich. T. 1800. 

(O lb. 

(ii) Upon the trial of Hall, for burglary, 
proof was offered that the prisoner had de- 
sired Loit to apply to the justice to admit 
him at a witness for the Crown ; but the evi- 



dence of such request was rejected, on the 
ground that it had been made under the 
hope of being admitted king's evidence, 
and could not be considered as voluntary. 
By Adair, Seij. Leach's C.C. L. 636; this 
case goes to a very g^at length. Where 
hopes had been held out to a prisoner to 
confess, and when brought before a magis- 
trate he refused to confess, except upon 
conditions, Buller, J. admitted the general 
rule, with some qualifications, observing, 
that there must be v^ry strong evidence of 
an explicit warning by the magistrate not 
to rely on any expected favour on that 
account; and that it ought most clearly to 
appear that the prisoner understood such 
wuming, before his subsequent confession 
could be given in evidence ; East's P. C. 
658. And in a similar case, before Bayley, 
J. where the prisoner had been told by the 
constable's assistant that it would be better 
for him to confess, but the magistrate 
cautioned him frequently to say nothing 
against hunself, the confession was held to 
be admissible. JR. v. Litigate , Derby Lent 
Ass. 1815, and afterwards before the Judges. 
Where the wife of the constable had told 
the prisoner, some days before the com- 
mitment, that it would be better for him 
to confess, the confession was admitted. 
J?. V. Hardwieke, cor. Wood, B., Notting- 
ham Lent Assizes, 1811, and afterwards 
before the Judges. Where the prisoner 
was admonished by a stranger, in the pre- 
sence of a constable, that he had better tell 



ADMISSIONS, IN CRIMINAL CASBS. 37 

Where a prisoner had been admitted king's evidence, and confeased, and Voluntary, 
upon the trial of his accomplices refused to give evidence, he was convicted 
upon his own confession, even although it had previously heenJaUefj/ repre- 
sented to him by a constable that his accomplices were in custody (x). 
Where a witness answers questions upon his examination upon a trial, tend- 
ing to criminate himself, and to which he might have demurred, his answers 
may be used for all purposes (y). Where a fact has been ascertained in con* 
sequence of an admission improperly obtained, it may still be proved, for 
ike fhet cannot have been affected by the influence used(z); therefore, 
upon an indictment for receiving stolen goods, where, in consequence of the 
confession, which had been unduly obtained, the stolen property had been 



the truth, his subsequent confession to the 
constable was adiDittt>d. JR. v. Bow, Ap- 
pend, to Barn's Just. tit. Evioeuce, 23 
edit p. 102.) Though the prosecutor, in 
the presence of a magistrate, desire the 
pritoner to speak the truth, and suggest 
that he liad better speak out, yet if the 
magistrate or his clerk immediately check 
the prosecutor, desiring the prisoner not to 
r^iard him, the confession is still admis- 
sible. R. V. Edwards, E. T. 1802. And 
where the constable told the prisoner that 
he might do himself some good by con- 
fessing, and the prisoner afterwards asked 
the magistrate if it would be any benefit 
to him to confess, and the magistrate said 
he conid not say that it would, on which 
the prisoner declined to confess but on his 
way to prison he confessed to another 
constable, and confessed again in prison to 
aoother magistrate, the Judges held una- 
pimonily, that the confessions were admis- 
fible in evidence, on the ground that the 
nagistrate's answer was sufiicient to efiuce 
any expectation which the constable might 
have raised. jR. ▼. Rosier, on a case reserved 
&v the Judges, East. Term, 1821. 

So if the expressions be not calculated 
to raise any hope of some benefit or ad- 
vantage of a mere temporal nature, it 
seems that they will not exclude a con- 
fession. Upon the trial of Hodgson a girl 
at York} for arson, evidence was offered 
of declarations made by the prisoner to 
Mrs. Richardson, her mistress, after the 
latter had told her it would be better if 
•he would confess if she were guilty, for 
she would never be easy in her mind till 
she had confessed. Holroyd, J. after con- 
salting Bayley, J. was of opinion that the 
evidence was receivable, but it was after- 
wards excluded on other grounds. A 
police officer having a boy in bis cuHtody 
on a charge of arson, without a warrant, 
told him that after the prevarications be 
had made, there was no doubt of ills guilt, 
and sake.! who was concerned with him. 
The prisoner had been apprehended about 
noon, and bad no food till he made a con- 
fiesskxD, in answer to the ofilcer's inquiries, 
between five and six in the afternoon ; and 
■evMi of the Jndges were of opinion that 
the evidenea was receivable, no threat or 



promise having been used ; but three were 
of the contrary opinion. R. v. Thumtonj 
1 R. & M. 27. Where the constable who 
had charge of the prisoner left the room, 
and shortly after the constable to whom 
the prisoner made the statement entered, 
the Judge refused to receive the statement 
without calling the other constable to 
negative any promise or threat, as other* 
wise it might lend to collusion by constables ; 
but it appearing that the prisoner was not 
under charge at the time, but detained 
only as an unwilling witness, the Court 
received the statement without previously 
calling the other constable R. v. Swat^ 
kins, 4 C. & P. 650. Where a pro- 
mise or threat has been held out, it 
will usually exclude the statement made 
to the same person. JR. v. Dunn, 4 C. 
6l p. 643. But where the prisoner made 
a confession to a magistrate after the per- 
suasions of a clergyman, but not witli any 
view of temporal benefit, and after cau- 
tions that it would probably be given in 
evidence against him, it was held that 
such confession was properly admitted. 
Gilhain's Case, 1 Ry. k. M. C, 186. And 
where a justice had held out promises 
of interference to induce a confession, but 
afterwards had informed the prisoner that 
there was no hope of pardon, and the 
prisoner subsequently sent for the coro- 
ner, and made a full disclosure notwith- 
standing he was cautioned that it would be 
used against him, held that it was admissible, 
(or) R. V. Burley, supra, tit. AccOM- 

PLICB. 

(y) Supra, 27 ; and see Stoel{/Uth v. J)t 
Tastet, 4 Camp. 10. In the case of R. v. 
Merceron, cor, Abbott, J., 2 Starlde's C. 
3(56, a statement by the defendant, upoa 
examination before a committee of the 
House of Commons, was received in evi- 
dence, although it was objected that the 
defendant could not refuse to answer the 
question without incurring a contempt of 
the House. 

(z) R. V. Warricksfiall, Leach's C. C. L. 
208, 3d edit. Harvey's Case, East's P. C. 
668. Mozey's Case, Leach's C. C. L. 301 . 
LochharVs Case, Ibid. 430. Butchef^i 
Case, Ibid. ; 2 Haw. c. 46, s. 38. 

d3 



38 



ADMISSIONS, IN CRIMINAL CASES. 



Prisoner's 

exainiua- 

tion. 



found concealed between the sackings of the prisoner's bed^ it was held by 
the twelve Judges, that the fact of finding the stolen property in the pri- 
soner's custody was clearly evidence (a). But in such case nothing is to be 
left to the jury but the fact of the prisoner's having directed the witness 
where to find the goods, and his finding them, but not the acknowledg- 
ment (b). No evidence can be received of any act done by the prisoner in 
consequence towards discovering the property, unless the goods be actually 
discovered thereby (c). 

Any voluntary admission or confession by a defendant is evidence 
against him at common law (d), whether it be made to a private person or 
to a magistrate (c). The statutes of Philip and Mary, which directed the 
prisoner's examination to be taken (/), made no difference as to the admis- 
sibility of evidence (g). The same observation is applicable to the stat. 7 
Geo. 4, c. 64, s. S. But no parol evidence of a confession can be given, 
where the confession has been taken down in writing, for the general rule 
applies, that it is not the best evidence (k). The statute directs that the 
examination of the prisoner shall be reduced to writing ; the court will 
therefore presume that the magistrate has acted in conformity with the 
statute (t), consequently no parol evidence can be given of a prisoner's 
declaration before a magistrate, without previous proof that it was not 
taken down in writing (A). But a written examination before a magistrate 
will not exclude evidence of a previous parol declaration, which has not 
been reduced to writing (/). 

The prisoner is not to be examined upon oath (m), for this would be a 



(a) Warriekthairs Case, Leach's C. C. L. 
208, 3d edit So, if after a promise the 
prisoner bring money, and g^ives it up to 
the prosecutor as part qf that which had 
been stolen from him. R.\. Oriffiny 1 Rnss. 
k. Ry. 151. But where the prosecutor said 
he wanted bis money, and tbat if the pri- 
soner pravo him tbat, he might go to the 
devil if he pleased, and the prisoner took 
money out of bis pocket, and said it was 
all he liad left, it was held that the con- 
fession ought not to bave been received. 
R, V. Jonei^ 1 Russ. & Ry. 152. 

(6) Per Le Blanc, J. It. v. Orant and 
Craig; R, v, Marian ffocfye, Wells Summ. 
Ass. cor. Gro9c, J. East's P. C. 668. 

(c) R, V. Jenkitu, 1 Russ. & R. C. C. L. 
492. 

{d) 2 Haw. c. 46, s. 23 ; Dy. 214 ; 
6 St. Tr. 58. R. v. Tong, Kel. 18, 10. 
R, V. WJieeler, Leach's C. C. L. 340, 3d 
edit R, V. Payne, 5 Mod. 105. 

(e) 2 Haw. c. 46, s. 33. R, v. Dore, 
And. 301 . MarshalVt Cate, 2 St. Tr. 1002 ; 
Leach's C. C. L. 208, 3d edit 

(/) An examination of a prisoner, 
though elicited by the magistrate's ques- 
tions, is admissible against him where no 
tbrcat or promise was used by the magi- 
strate. R, v. SUu, 1 Ry. & M. C. 437. 
Wliere the prisoner's statement was reduced 
into writing before the witnesses against 
him had been examined, it was admitted 
by Oarrow, B. with great doubts of its 
legality. R. v. Faggy4 C. & P. 560 ; but 
sec R, V. Bell, 5 C. & P. 1C2. 



{g) R. v. Lamb, Leach's C. C. L. 625, 
3d edit per Grose, J. 

{h) 1 Hale, 284; Summ. 263. 

(t) R. V. Jacobs and others, Leach's 
C. C. L. 340, 3d edit R. v. Hickman, 
lb. 340. R. y. FUher, lb. R.y.HaU,lh. 
240. R. V. FearsUre, lb. ; B. N. P. 208 ; 
2 Haw. c. 46, s. 43. 

(*) R. V. Hall, cited in R. v. Lambe, 
Leach's C. C. L. 635, by all the Judges, 
except Gould, J. Phillips v. WiTtbum, 
4 C. & P. 273. R. V. HoUingshead, lb. 
242. 

(0 27. V. APCarty, 8p. Comm. Dublin, 
707. Macnally on £v. 45. Action by 
bankers to recover money paid on a check 
purporting to be drawn by the defendant, 
but alleg^ to be a forgery, minutes of the 
defendant's examination on a charge made 
agsinst a party as having forged the check, 
are receivable, although he afterwards 
signed a regular deposition. WiUiamsY. 
Woodioard, 4 C. & P. 346. 

(m) B. N. P. 242 ; Kel. 2. It generally 
happens that a party who is examined 
upon oath before the magistrate, is exa- 
niined as a witness against others, and 
under the expectation that he will not be 
prosecuted. It has been said that a pri- 
soner ought not to be questioned by a 
magistrate ; and in the ease of R. v. Wil- 
son, Holt's C. 507, cor. Richards, C. B., 
the prisoner's statement was, on this 
ground, rejected as inadmissible ; but by 
the statute of Philip &, Mary formerly, 
and now by the stat 7 G. 4, c. 64, s. 3, 



ADMISSIONS^ IN CRIMINAL CABB8. 39 

species of daress, and a violation of the maxim, that no one is bound to 
criminate himself. And where the examination purported on the face of 
the magistrate's return to have been taken upon oath, the Judge rejected 
parol evidence to show that no oath had in fact been taken (n). 

In IdaMt Case {o) it was held, by a majority of the twelve Judges, that Proof of ex- 
a confession made by the prisoner before a magistrate might be read in aminatioo. 
evidence, upon proof, that when it was read over to the prisoner he said it 
WIS aU true enough, although he declined to sign it, and although it had 
not been signed by the magistrate ; for even a parol confession was evi- 
dence at common law before the statutes of Philip & Mary (p). 

By the sUtute 7 Geo. 4, c. 64, s. 8, the examinations must be returned by 
the justices to the next general gaol delivery, to be held within the limito 
of their commission. The identity of the examination {q) is usually proved 
by the magistrate, coroner, or his clerk, who took it down (r), and it should 
be shown that it contains the wbttanee of what the prisoner said ($), It 
should also appear that the confession was made freely (t) ; but it is not 



the magistnte I0 to take the examinar 
Hon of the prisoner ; and at the CarlUle 
Sp. Ass. 1824, Holroyd, J. admitted tlie 
prisoner's examination to be used as evi- 
deoee against liim, notwithstanding tliis 
objection. Where a statement by a de- 
fadant, made before a committee of the 
House of Commons, was objected to on the 
groond that the statement had been made 
under a compolsory process, the objection 
was oTemiled. R, v. Merceron, 2 Starlcie's 
C. 906. Before a statement made by a 
priaooer to the magistrate he was sworn 
by mistake, but as soon as it was disco- 
vered, the deposition was destroyed, and 
tiie party cautioned ; his subsequent state- 
ment is recdyable. R. v. VTe&fr, 4 C. & P. 
£64. A party is examined on oath upon 
a cfaaige made against another, he not 
being himself cliarged m suspected of any 
offeiiee, upon his being afterwards charged 
and indicted, his former deposition is ad- 
missible. J?. ▼. Httworth^ Yorlc Spring 
Assises, 1830, Parlce, J. 

(n) R. Y. Smith and another, ear, Le 
Blanc, J. 1 Starkie^s C. 84S. In the case of 
R. T. WiUon, 1 HoIt,C. 5l97,eor. Richards, 
L. C. B. it was held, that an examination 
of a prisoner, wliich consisted in answers 
to questions put by the magistrate, could 
not be received in evidence, although no 
ducats had been held out. 

(o) Leach's C. C. L. 625; and see 
2 Haw. c40, s. 31. 

(p) In the case of the King v. Telicotey 
eofr, Woorl, Baron, York Summer Assizes, 
1810, 2 Starkie's C. 483, where a prisoner, 
after Ills examination had been read over, 
refused to sign it, and did not say (as in 
LamJtft Cote) that it was true, the learned 
Judge rejected the evidence. But in the 
later case of R. v. Dewhunt, Lancaster 
Spring Assizer, 1825, where the ma^^strate 
himself had taken down the examination, 
which was read over to the prisoner, who 
made no objection to it, but did not sign 
it, Bayley, J. held that the magistrate 



might at all events refresh his memory by 
the writing, and give evidence of the 
statement ; but ultimately the examination 
itself was read. Minutes of a prlsoner'a 
examination, which have not been signed 
by him, or read over to him, may be used 
as minutes to refresh the memory of the 
witness, lAxifer'i Cate, 24 Howell's St. Tr. 
214; 6 Hargreave's St Tr. 229. Where 
the examination of a prisoner taken in 
writing is inadmissible from some irregu- 
larity, parol evidence of what he said 
npon the examination is admissible. R, v. 
Reed, 1 Mood, k M. C. 403. 

(q) It has been said that the examina- 
tions ought not to be taken before the 
grand Jury, Oilb. Ev. by Loft, 216; but 
the rule seems to apply to depositions 
only; and, in practice, the examinations 
are frequently (by leave of the court,) 
taken before the grand jury. 

(r) Parke, B. was opinion, that it is 
sufficient to prove the magistrate's signa- 
ture; but Lord Denman held, that thia 
was not suiiicient when the prisoner made 
his mark only, without writing his name. 

(«) 1 Hale, 284. The safest conrse is 
to take down the very words. The statute 
requires the justices to take the examina- 
tion, and to put the same, or so much 
thereof as is material, into writing. A 
prisoner said, ^ Give me a glass of gin, 
and I'll tell you all about it," and two 
glasses of gin were given by an officer to 
the prisoner, who then made a confession, 
and the officer afterwards wrote down 
from recollection what the prisoner hud 
said, and the officer read over what had 
been so written before the committing 
magistrate, and the magistrate told the 
priMner that a confession might do him 
harm, upon which the prisoner said that 
what had been read was the truth, and 
sig^ncd the paper. Best, J. refused to ad- 
mit the evidence. 12. v. Sexton, Norwich, 
Samm. Ass. 1822. 

(t) 1 Hale's P. C. 284. 

d4 



40 



ADMISSIONS. — AFFIDAVIT. — AOBNT. 



Force and 
feffect 



absolutely incumbent on the magistrate to warn the prisoner not to con^ 
fe8S (tf ). The whole of the confession must be read (x). 

A prisoner may be conyicted upon his own confession, without other 
evidence (y). 

It is a general rule, founded upon principles already adverted to (2), that 
the admission or confession of one defendant is not evidence against any 
but himself (a) ; except, indeed, such a privity and community in the same 
original design be proved, as to render that which has been said or done by 
one, in furtherance of the common object, fair and reasonable evidence of 
the general design and project itself. It was ruled in Ton^s Case{b\ upon 
the soundest principles, that the confession of one shall not be evidence 
against another. Where several are tried at the same time, and the con- 
fession of one implicates another, the evidence cannot on that account be 
rejected ; the usual course is for the court to inform the jury that th^ con- 
fession is evidence against that party only by whom it is made(c). In some 
instances, the confession of one, taken in the presence and hearing of 
another prisoner, may be very material evidence to explain the expressions 
and conduct of the latter upon that occasion ; for any declarations of his, 
by which he assented to what was confessed by another, to his own pre- 
judice, would be admissible evidence against him. The confession of the 
other may also, it seems, be evidence for the purpose of explaining such 
declarations (d). 

ADMISSION TO A COPYHOLD. See COPYHOLD.— EJECTMENT. 

ADULTERY. See CRIMINAL CONVERSATION. 

AFFIDAVIT. 

An affidavit sworn before a Judge is receivable in the court of which he is 
a Judge, though not entitled of that court, but not in any other court unless 
entitled of that court (e), 

AFFIRMANCE OF CONTRACT. See Index, tit Wavbb. 

AGENT (/). 

Iv A.f authorize B,, to do an act, it is in law the act of A,, and may be 
so alleged in pleading, except in cases of felony ; for then, if A. be absent 
when the fact is committed, he is but an accessory before the fact(^). Ac- 



(u) B, V. MagUl^ Hacnally, 38. 

\x) R. V. Payney 5 Hod. 165 ; 2 Haw. 
c 46, 8. 42. 

(y) Stone's Cote, Dy. 214. Franeit's 
Caae^ 6 St. Tr. 58. Fuher'g Cote, Leach's 
C. C. L. 3d edit 349. Wheeler's Caae^ Ih, 
Even though there be no positive proof 
that the offence was committed. M. v. 
Eldndge, Rues. & R. C. C. L. 440. R. v. 
Falkner, lb. 481. R. ?. Whitey lb. 508. 
R. V. Tippetty lb. 509. 

(z) Vol. I. See Index, tit Anicifl- 
8ION8. 

(a) 2 Haw. c. 46. The contrary was 
unjustly ruled in Throgmeirion's Casey 1 St 
Tr. 70. Earl qfEaseji^t Case, lb. 197 ; and 
Sir Walter Raleigh's Casey 1 Jac. 1. 

(6) KeL 18. 

(e) R. V. Heame and othersy 4 C. & P. 
215. See the observations of Wood, B. in 
Btdlen ▼. MieheUy 2 Price, 209. It is, 
however, morsUy impossible that the hear- 



ing of such a confession should not operate 
to the prejudice of the parties implicated ; 
in some Instances the inconvenience might 
be obviated by separate trials. 

{d) But a confession by one of several 
prisoners before a magistrate, which impli- 
cates all, cannot be r^ in evidence merely 
for the purpose of drawing an inference 
from their silence as to the parts which 
affect them. R, v. Appleby and others, 
3 Starkie's C. 33, cor, Holroyd, J. who 
said that it had been so held by several of 
the Judges on a case from Chester, and that 
he was of that opinion. 

(e) Reg. G., H. T. 2 W. 4. The addi- 
tion of every person making an affidavit 
must be inserted therein, lb. When sworn 
before the attorney on record or his agent, 
lb. 

(/) For other evidence on this head, see 
tit AnMissiONB. — AccBsaoBiBa. 

(jf) See AccpsaoET. 



agekt: pboop of authority. 



41 



cordinglvy on an allegation (in a ciyil action) that the master and servant 
drove ungovernable horses in Lineoln's-Inn-Fields, both were found guilty, 
although the servant alone was present {h). So an allegation that the de- 
fendant negligently drove his cart, is supported by proof that it was driven 
by his servant (t). Before the act of B. can be given in evidence as the act 
of A., it must be proved that B. was the agent of A, This proof may either 
be, — Isty direct, or it may result, 2dly, from the relative situation of ^. and 
B.; or 3dly, from their habit and course of dealing, or other special circum- 
stances ; or, 4thly, from A,* 9 recognition of BJa act, or his acquiescence in 
it. 1st. May be direcHk), As where the agent is called as a witness and Direct evi- 

proves that he was authorized to do the act, or transact the particular ^^"^® °^ 

BcreQcv* 
bnsinese. The fact of agency may be proved by collateral evidence 

without calling the agent (Q. If the authority was in writing, it must be 

produced, in order that it may be seen whether it has been pursued (m). If 

he acted under a power of attorney, the instrument must be produced and 

proved (n) And parol evidence of the authority is inadmissible, where the 

authority from its nature must have been in writing (o). This, however, 

does not appear to be necessary, where the authority can be clearly inferred 

from the course of dealing, or from the recognition of the agent's acts by 

the principal. And therefore in the case of The King v. Bipff (/?), which was 

an indictment for a felonious erasure of an indorsement upon a bank-note, 

although it was contended, on behalf of the prisoner, that it was necessary 

to prore the appointment of Adam$ as the agent of the Bank of England, 

being a corporate body, under their seal (g), it was held to be sufficient to 

sbow that Adams had been used to sign bills and notes, which from time to 

time had been duly paid, and answered by the Bank. It was found by the 

special verdict that Adams had been intrusted and employed by the Governor 



(h) Michael v. AOestreey 2 Lev. 172. 

(t) Bmdbgr v. Fronumt, 6 T. R. 650 ; 
asd see TvbermlU v. Stamps Ld. Raym. 
264. 

(ft) A letter anthorizing an agent to draw 
to a eertain amonnt, coupled with a power 
of attorney to enter iato aad complete con- 
tracts, make pvrthaaes, &c., is a sufficient 
aathority to such agent to raise money for 
the purposes of his employers ; and a party 
advancing monies to such agent is not 
Wnnd to call for those instnuMnts, and 
inquire what money has been already ad- 
vanced on the letter. WithxnQton v. Her' 
rmg, 5 Bing 442. See Attwood v. Afun- 
fltn^, 7 B. & C. 278; A direction to an 
agent to enter upon premises (in mortgage) 
and sell the stoeli, &c., which was declared 
to be for tlie benefit of the platetiff, and 
amounting to an authority to pay over the 
amount to him, being in consideration of 
his postponing the sale of the estate, is an 
inevocable authority, and the plaintiff may 
sue the agent for mouey liad and received. 
Meteiitf V. CUmghf 2 H. dc Ry . 178. The 
steward of a manor cannot appoint a d^ 
paty without special authority. Barker 
V. Kelt, 3 Salk. 124. The office is grant- 
able In reversion ; lb. Where the agent 
had in his own name always sold the goods 
aad received the tunount, held that having 
as aathority to sell, he luul aa implied one 



to receive the price ; and that the prlnel* 
pals could not avow the act of their agent 
as to one part, and repudiate it as to the 
other. Cope/ v. Thornton^ 3 C. & P. 353. 

(Z) Ovsen v. Barrow^ 1 N. R. 101 ; ii\fra, 
tit. Usury. Where goods were fraudu- 
lently obtained by D., the agent of FT., the 
purchaser, and also of the defendants, 
without any iotention of being paid for, 
and were immediately sold to the defend- 
ants ; held, in trover, that the handwrit- 
ing of J>. to various contracts as the agent 
of W, might be proved, and as steps in 
proving the fraud, .without calling him 
as a witness, although the jury found that 
tlie defendants were not privy to the fraud. 
Irving v. Motley, 7 Bing. 643. 

(m) Johnson v. Matonf 1 £sp. G. 89. 
Coore V. Calloway, lb. 115« 

(fi) Ibid. 

(o) Ibid; but see 8 P. Wms. 427, 
B. V. Bigg. 

(p) 3 P. Wms. 427. 

iq) It was alleged in the indictment, 
that one Joakua Adams was intrusted and 
employed by the Governor and Company 
of the Bank of England to sign bank-notes 
for the said company ; and it was found 
by the special verdict that he was so in- 
trusted and employed by the Governor, &c. 
btd not under their common teal. 



42 



agent: proof op authority. 



From the 
relative 
situation of 
the parties. 



From habit 
and course 
of dealing. 



and Company, but not by any instrument under their seal. A majority of 
the Judges were of opinion that the evidence was sufficient^ and the prisoner 
was transported. 

Secondly. From relative Situation, — Where the authority results from the 
relative situation of the parties, it is sufficient to prove such relative situa- 
tion (r). Thus, to affect the sheriff with the act of the undei^heriff it is 
unnecessary to show more than that the latter is the under-sheriff («). But 
a bailiff is not the general officer of the sheriff, and therefore the particular 
authority must be proved (t). Proof of the sale of a book by a serumt in a 
bookseller's shop is primd fade evidence of a sale by the master (m). The 
answer of a clerk at a banking house, transacting the business of his prin- 
cipals, is evidence against the latter {x). Where the captain of a vessel 
orders goods for the use of the ship, the owners are responsible (y). So it 
is the common course upon trials at Nisi Prius, to read the admissions of 
the attorney on record of either of the parties ; and a plaintiff is bound 
by the act, not only of his attorney, but of his agent in town (z), in the course 
of the cause. 

A letter written to the plaintiffs, respecting the pulling down an adjoining 
house belonging to a corporation by their surveyor, and who had the manage- 
ment of their buildings, may be presumed to have been written by him in that 
capacity, and therefore is evidence against them (a). 

Thirdly, From habit, course of dealing^ ^c. — In mercantile transactions, 
the fact of the usual and general employment of a particular agent in the 
transaction of business is the most usual evidence of authority (6). Thus, 



(r) See 7 T. R. 1 13. The plaintiffs, cor- 
respondents in England of a foreign mer- 
chiuit,had in May 1827 a Bank of England 
note remitted in part-payment of the ac- 
count due to them, which had been stolen 
in February 1826, and when presented at 
the Bank, was detained; it was held in 
trover, that the plaintiffs mnst be taken to 
be the agents of the foreign merchant, and 
could only recover upon his title, and there- 
fore were bound to show that it had been 
received without any grounds of suspicion 
that the note had been improperly ob- 
tained. De la Ckaumette v. Bank qf 
England, 9 B. & C. 208. A deed signed 
by tile chief clerk and solicitor of a com- 
pany is binding on them, unless it be 
shown that he exceeded his authority ; and 
it makes no difference whether the object 
of producing it were to enforce it or bind 
the company in any other way by its con- 
tents. Doe d. Macleod v. East London 
Wa/tenoorhi Company, 1 Mood, k, M. C. 
149. Agents, authorized to draw bills for 
a company, drew them in their own names, 
and not as agents, although for the pur- 
poses of the company ; held that the mem- 
bers of the company were notllablepn the 
bills, but, semble, they were liable bb part- 
ners for the money lent. Ducarrey v. QtU, 
1 Mo. & M. 461, and 4 C. & P. 121. 

(#) Ibid. 

(0 Ibid. 

(u) R. V. Almon, Burr. 2686. See tit 
Libel. 

(x) Price v. Monk, 1 Carr. C. 60. 



The employment of a ship is evidence of 
an authority from the owner to the master, 
in respect of every lawful contract made 
by him relative to such employment of the 
ship. Abbott's L. S. 112. 122 ; 1 Vent. 
100. 238. An assignment of a lease under 
a fl, fa, by A. B, as nnder-sherifP, i» 
evidence that he is undei^heriff. Doe d. 
James v. Brown, 5 B. & A. 343. The 
drawing of bills by the consignor of goods 
on the consignee or fiictor, against the 
consignment, does not authorize the latter 
to pledge the goods. Oill v. Kymer, 
5 Moore, 518. Duelot v. Ryland, cited 
lb. See Ouiehard v. Morgan, 4 Moore, 
36 ; Paterion v. Oandetequi, 15 East, 62 ; 
Daubigny v. Ihtcal, 5 T. R. 604; Field' 
ing V. Kymer, 2 B. & B. 639. By the stat. 
4 G. 4, e. 83, a person may take a deposit 
or pledge of goods to the extent of the 
consignee's interest. 

(y) 1 T. R. 108 ; and so is the captain 
also ; aUter, if they be ordered before his 
appointment, although not delivered till 
^ter. Farmer v. Bamt, Ibid. And see 
the last note. 

(z) Chiffiths V. WiUiamM, 1 T. R. 710, 
711. See Hayt v. PerHm, 3 East, 568. 

(o) Peyton v. Oooemort qf St, 2%o- 
mae's Hospital, 3 C. & P. 363. The an* 
swer of a clerk at a banking-house, trans- 
acting the business of his principals, is 
evidence against them. Price v. Marshy 
1 Carr. C. 60. 

(b) See R, v. Biggs, 3 P. Wms. 427, 
and supra, note (a?). 



AGBMT : PROOF OF AUTHOBITY. 



43 



the general authority of broken to sell, so as to bind their principals in From habit 
respect of the purchase, is to be collected from their general dealings, and °°^ course 
not merely from their priTate instructions as to the particular parcel of ^ °^' 
goods ; and if a general authority can be inferred from the usual course and 
habit of dealing, the principal will be bound by the contract although it be 
contrary to the particular instructions (c). Where an agent had been em- 
ployed for a length of time to pay for work of a particular description, 
and workmen were always referred to him, his acknowledgement of a debt 
was held to be binding upon his principal (d), A master, who in a single 
instance authorizes his servant to take up goods on credit, is afterwards 
liable (e). So where the defendant's wife usually gave orders for goods, her 
acknowledgement of a debt being due within six years, wa« held to be 
evidence against her husband (/* ). So where the wife had taken lodgings 
for herself and her husband, and afterwards gave notice of quitting, upon an 
action brought for use and occupation, it was held that the acknowledgment 
of the wife was evidence against her husband ; and Lord Kenyon said, that 
where a wife acts for her husband in any business or department by his 
authority, and with his assent, he thereby adopts her acts, and must be bound 
by any acknowledgment, or any admission made by her respecting that 
business in which she has acted for him (g). In such respects, the wife doea 
not differ from any other agent. So an admission by a clerk usually em- 
ployed in corresponding on business, is evidence (A). 

An authority to receive payment on bonds, bills, &c. is usually evidenced 
by the custody of the instruments themselves (t). And it was held, that a 
payment to one who usually received money for an obligee of a bond, was 
not sufficient, unless he had the custody of the bond (k), 

Fmtrthfy, A recognition by the principal of the agency in the particular Recogni- 
instance, or in similar instances, is evidence of the authority to the latter. "' 
As, where one subscribes policies in^he name of another, and, upon a loss 
happening, the latter pays the amount ; this would be evidence of a general 
authority to subscribe policies (l). So where the defendant's son had, in three 
or four instances, signed bills of exchange by the direction of his father, it 
was held to be sufficient evidence for presuming an authority from the 
father to the son to sign a guarantee (m). 



(c) Whiteheads. Tuckett, 15 East, 400. 

\d) Burt v. Palmer, 5 Eap. C. 145. 
Hie plaintiff, after repeated applications 
for payment to the defendant, receiving no 
answer, applied to an attorney, supposed 
to act for the defendant, for payment, who 
answered the letter, and paid part, and to 
a subsequent letter replied, promising pay- 
ment of the remainder; held, that as it 
appeared that he was the agent at one 
time, this was evidence to go to the jury 
that he continued to be so. Roberts v. 
Greeley, 3 C. & P. 380. 

(#) The defendant sent a waterman to 
the phdntiff for iron, on trust, and paid 
for it afterwards ; he sent the same water- 
man a second time with ready money, 
who received the goods, but did not pay 
for them. Tlie C. J. nded that the send- 
ing him on trust the first time, and paying 
the money, gave him credit, so as to charge 
the defendant on the second contract. 
Hazard v. Tradwell, Str. 506; and see 
RuMlfif V. ScaHett, 5 £sp. C, 76 ; 1 Show, 



05. See tit. Goons bold avd db- 

LIVERED. 

(/) Palethorp v. Fumuh, 2 Esp. Cas. 
211. See tit. Admissions, 20, 30. 

(g) Emeriony. Blonden^l Esp. C. 142; 
and see Andereon v. Sandertrm, 2 Starkie's 
C. 104. So where the wife kept a shop in 
the absence of the husband, and admitted 
a debt for goods sold and delivered. Peto 
V. Hague, 5 Esp. C. 134. Cliffbrd v. 
Burton, 1 Bing. 190. 

(h) Harding v. Carter, Park on Ins. 
4 ; vide tupra, p. 42. 

(i) 1 Chan. Cas. 103. Oweny. Barrow, 
1 N. R. 101; 12 Mod. 564. See tit. 
Payment. 

{k) Gerard v. Baher, I Ch. Ca. 94. 
Ihike qf Cleveland v. Dashwood, 2 £q. 
Cas. Ab. 709. 

(2) Courteen v. Toute, 1 Camp. 43, n. 
(a) Neal v. Irving, 1 Esp. C. 61 . Hough- 
ton V. JEwbank, 4 Camp. 88 ; although the 
agent acted under the power of attorney. 

(m) TFo/Aiitf v.rinee,2SUrkie'sC.3G8. 



44 



AGENT, DECLARATION BY. 



Kecogni- 
tion of au- 
thority. 



Acts and 
declarationB 
of an agent. 



Mere eyidence, however, that the agent has done acts in the name of a 
principal, will not bind the latter without some evidence of recognition on 
his part; and therefore, where a policy had been signed by one Butler, and 
it was proved that Butler had signed other policies in the name of the 
defendant, but no evidence was adduced of any authority given in the par- 
ticular case, or of the defendant's having ever paid a loss on such policies, 
the evidence was held to be insufficient (n). If an agent has authority to 
subscribe a policy, he has also authority to adjust it (o). 

Where the defendant in an action on a policy of insurance had used an 
affidavit, made by a third person, for the purpose of putting off the trial, 
it was held, that the statement in the affidavit, that the deponent had sub- 
Scribed the policy on the behalf of the defendant, was admissible to prove 
the fact (p). 

If a master send a servant to receive money, and the servant instead of 
money receives a bill, the master may, as soon as he knows it, dissent, and 
will not be bound by the payment ; but acquiescence, or a small matter, it 
was said, in the case of Ward v. Evans (q), will be proof of the master's 
assent, and that will make the act of the servant the act of the master. In 
Thorold V. Smith (r), the servant having been sent for money received a 
cheque, which he kept in his own hands, without the knowledge of his 
master, and upon the banker's failure the servant sent back the bill ; and 
Holt, Chief Justice, and Powell, J. seem to have been of opinion, that 
it was a question of fact for the jury, whether the servant, under the cir- 
cumstances of the case, had authority from his master to receive bills 
instead of money ; and a new trial was granted, for the purpose of ascer- 
taining the fact (tf). 

Where the defendants' agent abroad received by their orders money on 
their account, and communicated the fact to them, which they acknow- 
leged, and directed the disposal of it ; it was held that the agent's letters 
were admissible as against the defendants to charge them with the receipt 
of the money, they having adopted and acted upon the assertions of their 
agent {t), A duty arising out of particular relations or circumstances, is 
properly alleged as an implied promise (u). 

Such presumptions and implications of authority are in general applicable 
to civil cases only. Evidence of a wilful trespass by the servant will not 
show that the master is a trespasser, without express evidence that the act 
was done by his direction ; for an authority to commit a trespass cannot be 
implied {x). But fraud will vitiate a contract, although the principal take 



(n) Courtetn v. Tome, 1 Camp. 43, 
n. (a). 

(o) i2icAard^onv.ilfuf0rJon,lCamp.43. 
D. (a). 

(p) Johnton v. Ward, 6 Esp. C. 48« 
See also 2 T. R. 189, in not. *, 2 Ld. Raym. 
930; II Mod. 88. 

(q) Salk. 442. WatMnt v. Vince, 2 
Starkie'fl C. 368. 

(r) 11 Mod. 87. 

I $) Bat Holt., C. J. intimated his opinion 
that a jury at Guildhall would find pay- 
ment by a bill to be a good payment, ac- 
cording to the common pnetice of the 
city ; and Powell, J. said he tuppoted that 
the servant had many times received bills 
for his master, which was an authority for 



the purpose ; but that that was matter of 
evidence, being according to the common 
practice of the world. 
(0 Coates V. Bainbridge, 5 Bing. 58; 

1 M. & P. 142. 

(u) Callender v. JDelriehe, 5 Bing. N. 
O., u8* 
(x) Maemanut v. Criekett, 1 East, 106 ; 

2 H. B. 443. See also Hcarding v. Greenr 
ing, Holt's C. 631 ; and Jt. v. Johngtont 
7 East, 65, ii^ro, tit Libel. The tort of 
a servant or deputy does not afiect the 
master. Mo. 777. 787; Com. Dig. 
Ofpicbr, [K.] 3. Although an informa- 
tion for penalties is a crimimd proceeding, 
yet it is also in the nature of a civil pro- 
cess to recover the Crown's debt; a party 
therefore carrying on trade by Uis servants. 



AGENT. DECLARATION BY. 



45 



no part in it, for he is civilly responsible for the acts of his agent (z). It is Acts and 
a general rule, that an agent cannot bind his principal by any act beyond declara- 
the scope of the authority delegated to him (a). Where the fact of agency Qgent 
has been proTed, either expressly or presumptively, the act of the agent, 
coextensive with the authority, is the act of the principal (b), whose mere 
instrument he is ; and then, whatever the agent says, within the scope of 
his authority, the principal says, and evidence may be given of such acts 
and declarations as if they had been actually done and made by the prin- 
cipal (c) himself; and it makes no difference whether the declaration be 
trae or false, for they are just as binding upon the principal as if they had 
been actually made by him. But where the agent makes any declaration 
or representation of his own, and not as the instrument of his master, that 
declaration will not be evidence, but the agent himself must be called (<f) 
to prove any fact within his knowledge ; consequently, a letter written by 



an 



and deriving profits from their acts, is respon- 
sible for penalties incurred by their violation 
of the revenue laws. Attorney General v. 
Siddon, 1 Cr. & J. 220 ; 1 Tyrw. 41 ; and 
see R. V. JDixon^ 3 M. & S. 11 ; and R. v. 
Gvtdi^ 1 Mood, k, M. C. 439. In the case 
of an illegal distress, as damage feasant, 
by a servant, an authority to make the 
iiiegal distress cannot be inferred from 
hwful authority given in other instances, 
lAfons V. Martin, 3 N. & P. 509. 

(z) Doe V.Martin, 4 T,^S9. A prin- 
cipal is bound by the fraud or misrepre- 
sentation of an agent in making a contract 
for him. Fitzkerbert v. Mather, 1 T. R. 12, 
Park. Ins. 321.326. See further, App. 45. 

<a) Fenn v. Harriaon, 3 T. H, 367. A 
&ctor cannot pledge the goods of his prin> 
cipal by indorsement of the bill of lading, 
or even by delivery of the goods them- 
selves. Newtom v. Tkomtonj 6 East, 17. 
BaMgny v. Duval, 5 T. R. 604. Pater- 
ton V. Tosh, 2 Str. 1178. Martini v. Coles, 
1 M. & S. 140. Even although he has 
accepted bills on the faith of such consign- 
ments. Graham v. Dyster, 2 Starkie's C. 
21. Fielding v. Kymer, 2 B. & B. 039 ; 
5 Moore, supra, 42, note (x). But the 
rale does not apply to a banker who 
pledges an indorsed negotiable security 
deposited in his hands. 1 Bos. & Pull. 
Sid. 651. The plaintiffs previously to a 
■ale issued catalogues, and by one of the 
conditions of sale, payment was to be made 
on delivery by good bills on London, at four 
months from the date of the sale ; one of 
the catalogues being sent to the defendants 
by their broker, they directed him to pur- 
chme certain lots, which he accordingly 
did, in his own name, and immediately drew 
on the defendants at four months, which 
they accepted, and paid when due. It ap- 
peand that at the sale the terms of pay- 
ment were varied to known purchasers to 
"peymoit two and two months," by which 
the brokers were allowed to have the goods 
without giving bills at the time, and they 
subsequently became bankrupts. In an 
aetioB against the defendants as the real 



purchasers, it was held that the defendants 
not having authorized any contract dif- 
ferent from that mentioned in the condition, 
viz. a payment on delivery by good bills, 
and on the faith of which they might pro- 
perly accept the bills, they were not bound 
by the contract varied at the sale, and 
that the plaintiffs therefore were not en- 
titled to recover. Hortfall v. Fount" 
leroy, 10 B. & C. 756. 

(b) The declaration of a servant em- 
ployed to sell a horse is evidence to charge 
the master with a warranty, if made at the 
time of sale ; if made at any other time, 
the facts must be proved by the servant 
himself. Helyarv, Hawke,d Esp. C. 72; 
and see Irving v. Motley, 7 Bing. 543. 
Garth V. Howard, 8 Bing. 451. Scliuman 
V. Locke, 10 Moore, 39. And see note {I). 

(e) As to payments to an agent, see tit. 
Payment, and Steioartv, Aberdeen, 4 M. 
&W. 211. 

(d) See Kahl v. Jansen, 4 Taunt. 565. 
and Langhom v. Allnutt, 4 Taunt. 511. 
In the first of these cases the Chief J. 
observed, "when it is proved that A, is 
the agent of B., whatever A, docs or says, 
or writes, in Uie making of a contract, as 
agent of B., is admissible in evidence, 
because it is part of the contract which he 
makes for B., and which therefore binds 
him, but it is not admissible as the agent's 
account of what passes.*' See also Met- 
taert v. Abraham, (I Esp. C. 375); the 
question was, whether the defendant, the 
purchaser of goods, had agreed to find bags 
for the carriage of them : according to 
the report of the case, the plaintiff offered 
in evidence the letter of the broker who 
sold the goods, (being the plaintiff's own 
agent,) written to the plaintiff, saying that 
the bags would be rea^y by a certain day ', 
the broker was then in tlie box, and LoVd 
Kenyon said, that he would admit evidence 
of what he had done on account of tlie 
defendant, but that it should be learned 
firom himself, and not from his letter. See 
A8l\ford V. Price, 3 Starkie's C. 185, infra, 
note {g). 



46 



AGENT, DEFENCE BY. 



Defence by 
an agent. 



an agent to his principal of what he has done, being the representation of 
the agent to his principal of what he has done, is not admissible in evidence 
against the principal to prove the truth of the representation (e) ; for he is 
no longer the authorized instrument of the principal to bind him by such 
declarations. 

So where the question was, whether the agent of the defendant had deli- 
vered to him a bond, alleged to have been made by the defendant to the 
plaintiff, it was held, by the Master of the Rolls, that the declaration by the 
agent, that he had delivered the bond to the defendant, was not admissible 
evidence to prove the fact (f). But it is otherwise where the principal 
refers himself to his agent's declaration on a particular subject, or con- 
stitutes a party his general agent for conducting his business, for then a 
declaration or acknowledgment by the latter falls within the scope of his 
authority {g). 

An agent may generally repel an action against himself by proof that he 
acted on the footing of an agent, and was understood so to act (A), unless 
he execute an instrument in his own name (t). A public officer, trading on 
behalf of the public, is not liable on contracts made by him in that capa- 
city (A). One who contracts on behalf of government is not liable, although 
the contract be by deed (/). But if a person represent himself to be an agent 
for one who resides abroad, it seems that he is personally liable (m). 

So where a captain contracts for goods for the use of the ship (n). 



(e) 4 Tannt. 511, lb. 565. 663. As to 
admissions by an attorney, see tit. At- 
torney. 

(/) Fairlie v. Hastingt, 10 Ves.jnn. 
128. 

{g) Vide nqpra, p. 29. A declaration 
by the clerk of an attorney, in taxing costs, 
that he would not charge extra costs, is 
evidence against the principal. As}{ford 
V. Price, 3 Starkie's C. 185 ; 1 D. & R. 48. 

(h) See Vendor and Vendee. The 
office of clerk to a body of trustees being 
executed by a deputy, the clerk is not re- 
sponsible for losses occasioned by the neg- 
ligence of such deputy induced by the 
negligence of the trustees, nor for monies 
which came into his hands through their 
Irregular acts ; but he Is for sums received 
at his office by such deputy without his 
authority, but which he had ground for 
believing would be paid there. Whitmore 
V. WilJu, 1 Mood. & M. 214. Notice that 
third parties are interested in a particular 
adventure, imposes upon an agent the duty 
of accounting with the latter, in respect of 
theur proportion; but it is otherwise if 
from subsequent transactions it be shown 
that they are content to rest upon the re- 
sponsibility of the other partners, and that 
the agents should account solely to them. 
Killock V. Oreg, 4 Russ. 285. See fur- 
ther as to the defence that the party is but 
an agent, Foster v. Blakelock, 5 B. & C. 
328 ; and tit. Work and Labour. As 
to the liability of parishioners directing 
parish work to be done by the church- 
wardens, see Lanchetter v. TVic^er, 1 
Bingh. 200. See tit Abatement — 
Churchwarden. 



(i) Appleton v. BinkSy 5 East, 148. 
But if an agent covenant in his own name, 
he will be personally bound, although he 
be described in the deed as covenanting 
on the part of another. Appleton v. Sinks, 
5 East, 147. WUks v. Backs, 2 East, 
142. White v. Cuyler, 6 T. R. 176. And 
if he draw a bill in his own name, he will 
be personally liable, although the plaintiff 
knew that he was merely an agent. Leadr 
hitter v. Farrow, 5 M. & S. 345. Thomas 
V. Bishop, Str. 055. So where a solicitor 
undertakes in writing to pay rent on with- 
drawing a distress. Burrell v. Jones, 
3 B. & A. 47. A party describing him- 
self as agent or consignee of a vessel char- 
tered for a specific purpose, signs an agree- 
ment in his own name, witnessing ** that 
the said parties agree,*' &c., and acting as 
principal throughout the voyage, is per- 
sonally liable. Ketmerly v. Oravina, 3 
D. k R. 503. 

(k) Macbeath v. Haldimand, 1 T. R. 
172. 

{t) Unwin v. Wolseley, 1 T. R.674. 

(m) De Gaillan v. L*Aigle, 1 B. & P. 
368; 3 B. & A. 47. Burrell v. Jonet. 
Appleton V. Binhs, 5 East, 148. A. ap- 
points by power of attorney three persons 
to act in the management of his estates in 
Jamaica, as his attomies, one of whom re- 
siding there, enters into an agreement with 
jR, to undertake the factorage of the 
estates, together with others, on certain 
terms; 12. cannot call upon A. for sup- 
plies Aimished, but must look to the at- 
torney with whom he contracted. Pert' 
nant v. Simpson, 1 Knapp, P. C. 399. 

.(n) Farmer v. Davis, 1 T. R. 108. 



AGRBBMENT.— APOTHECARIES. 



47 



It is a settled rule of law (o), that an agent shall not be allowed to dis- 
pute the title of his principal. 

One who agrees to be responsible as agent for the plaintiff in respect of a 
sale with the auctioneers, is liable, although the plaintiff appoint the auc- 
tioneer (/^). 

It is also a general rule, that an agent shall not be allowed to take an 
undue advantage of his principal through the medium of such agency, by 
standing in a double eapacity {q), 

AMENDMENT. See Tit VARIANCE ; and see Append. Vol. II. 47. 

APOTHECARIES. 

An apothecary, by the stat. 65 Geo. 8, c. Id4, s. 21, must, in an action for 
business done, prove either that he practised(r) as an apothecary prior to 
or on the^fff day of August 1816, or that he has duly obtained his certi- 
ficate («) from the master, wardens, and society of Apothecaries, unless he be 
a surgeon or assistant-surgeon within the stat. 6 Geo. 4, c. 138 {t). A diploma 
from a Scotch university does not exempt in England (u). In an action to 
recoTer penalties under the same Act, sec. 20 (i;), where the question was, 



(o) And therefore, where an agent has 
received money on behiJf of his principal, 
he cannot afterwards be allowed to say 
that he receired it for some other person. 
Dixon V. Hammond, 2 B. & A. 810. The 
defendant In that case haying effected an 
insuraoee for both Flowerden and David- 
SCO, aod having received the amount of a 
loss, it was held that he was bound to 
pty it over to the partnership, and could 
aot pay it to Flowerden alone. In Far- 
rin^on v, Clarke, 2 Chitty's C.T. M. 429, 
an agent had taken out letters of admini- 
stration in India for his principal, who had 
obtained administration of the intestate's 
effects; and it was held that the agent 
coold not refuse to pay over the assets to 
his principa!, on the ground that others 
bad obtained administration. lb. See also 
Boberts v. Ogilby, 9 Price, 209. Gosling 
T. Btmie, 7 Bingh. 339; 6 M. <c P. 160. 
Havei v. Watson, S B. & C. 541. Sto- 
nard v. Dunkin, 2 Camp. 334. But see 
Sfuthy V. Wynne, and Ogle v. Atkinson, 
Vol. II. Trover by Vbndeb. 

(p) Cholmondely v. Payne, 8 C. & P. 
4%1 And the pUdntilRi receiving part of 
the proceeds firom the auctioneer does not 
discharge the agent lb. 

[q) A., being in this country, applied to 
B. to advise Idm as to dealing in foreign 
fnnds, and 1^ his advice transferred foreign 
Purities f^m one to another. It appear- 
ing that the funds purchased were BJs own, 
Bod the transfers merely dealing with his 
ova stock, it was held that the transac- 
tion coald not be supported, the dealer 
Btaoding in a situation of advantage which 
ui agent is not permitted to be in dealing 
with his principal. Brookman v. Roths- 
t)iUd, 3 Sim. 153; and affirmed in Dom. 
Pr. 1 Dow. & C. 188. A party employed 
to purchase an estate, becoming the pur- 



chaser himself, is held in equity to be a 
trustee for his employer. Lees v. Nuttall 

1 Buss. & M. 53. Where the defendant, 
having been employed by the plaintiff aa 
broker, undertook (as he was bound to do 
under 6 Ann. c. 16, s. 4) to charge him 
only the cost price of the goods purchased, 
having violated his duty in every instance, 
the plaintiff is entitled to recover damages 
for such overcharges paid by him. Proctor 
V. Brain, 2 M. & P. 284. 

(r) Wogan v. Somerville, 7 Taunt 401. 
It was there held that the house-apothe- 
cary of an infirmary, who officiates in 
making up medicines for the patients, is 
a person practising within the statute. 

(*) Shertcin v. Smith, 1 Bingh. 204. 
It waa there held that a certificate from 
the Coort of Examiners was conclusive to 
show that the party had served an appren- 
ticeship. It is sufficient to prove the 
signature of one of the examiners of the 
Apothecaries' Company, which the certifi- 
cate purpoits to bear, with evidence that 
it was issued by the Court of Examiners. 
Walmesley v. Abbott, 3 B. & C. 218. By 
the 6 Geo. 4, c. 133, s. 7, the seal of the 
Apothecaries' Company is evidence of the 
certificate and qualification; but the seal 
roust be proved. Chadwick v. Bufining, 

2 C. & P. 106; 1 Ry. & M. 306. 
{t) See the Appendix. 

(tt) Apothecaries^ Company v. Collins, 
4 B. & Ad. 604. 

(v) Apothecaries' Co. v. Boby,5 B. k A. 
940. It was there held, that upon an 
Information against the defendant to re- 
cover penalties for practising against the 
statute, it was necessary to show in de- 
fence that the defendant was in practice 
on the first day of August 1815, and that 
it was not sufficient to show that he was 
in practice on a prcyious day. 



VOL, II. 



d8 



48 



APPLICATION OP PAYMENT. — APPROBATION. 



whether the defendant had practUed €u an apotJiecary previons to the Ist of 
August 1815, it was held, that the incapacity, preyed on the defendant, to 
make up the prescriptions of physicians before that time, was cogent 
eyidence to prove the negative {v) ; since the 6th section of the act describes 
it to be the duty of an apothecary to make up prescriptions for physicians. 
It has been held, that an apothecary who charges for attendance is not 
entitled to charge for the medicines which he finds, and vice vend (w). In 
a later case, a surgeon and apothecary was allowed to recover reasonable 
charges for attendance, besides his charges for medicines (x). 

APPLICATION OF PAYMENT. See PAYMENT. 

APPORTIONMENT. 
Thbrb can be no extinguishment, suspension or apportionment of rent 
contrary to the contract and agreement of the parties, but where the lessor 
enters wrongfully (y>. But if the lessor take a part, then there shall be an 
apportionment {z) ; and the apportionment may be made by a jury (a) So 
if the lessee be evicted of part, and continue to hold the remainder (6). 

APPROPRIATION. See PAYMENT. 
The brokers of B. sell goods in their possession to C, taking in payment 
a bill accepted by D. and retain the goods on C's account, with instructions 
to sell, if at a profit. Before the bill becomes due, D. becomes bankrupt ; 
the brokers, of their own accord, apply to C for security, who authorises 
them to sell the goods, and apply the proceeds in payment of the bill. 
Before they are sold, C also becomes bankrupt; Cs assignees cannot main- 
tain trover against the brokers, or against ^., for the goods which, after 
the order from C to the brokers to sell and apply the proceeds, remained in 
the hands of the latter subject to that charge, although the brokers, in 
requiring such security, acted without instructions from B.y he having by 
his conduct subsequently ratified their acts, and the brokers being entitled 
to act for their employers' benefit (c). 



(v) The Apothecaries* Company Y, War- 
bttrton, 3 B. & A. 40. It is not sufficient 
to show that he professed to core, and 
practised in local complaints only ; to en- 
title himself to sue he mnst have eom- 
ponnded medicines, and practised the gene- 
ral daties of an apothecary. Thompson 
V. Letoiif 1 M. & M. 265. A practising in 
the sendee of another is not sufficient. 
Broum v. Bobinson, IC.kP, S64. A. 
bound himself apprentice to an apothecary, 
who resided eight miles from H, The 
apothecary then took a house at H,, in 
which A. resided, and attended sereral 
patients there, the apothecary coming over 
occasionally, and being consulted by the 
defendant about the patients; held that 
this was a practising by ^1. as an apothe- 
cary within the meaning of 55 Geo. 3, 
e.l94,s.20. The Jifaiter,^. of the Com- 
pany qf Apothecaries v. Greenwood, 2 
B. Sc Ad. 708. If a person compounds 
medicines, &c. he is liable to penalties, 
although he cannot make up a physician's 
prescription. Apothecaries' Company y. 
Allen, 4 B. & Ad. 625. 

{to) Towne v. Gresley, 3 C. & P. 581. 

(x) Handey v. Benson, 4 C. & P. 



110. See further Bill of Exchange 
— SnaoBON. 

(y) Hodgson v. Thoniborough, 2 Lev. 
143. If A. lease to B., reserving 201. 
rent, and B, underlet part to C. without 
rent, and C, assign to A,, yet A, shall 
have the whole 202. without apportion- 
ment. 

(z) Per Popham, In Smith v. Malings, 
Cro. Jac. 160; Litt. s. 222; Co. Lltt, 
148 (a). So If the lessor grant or devise 
part of the reversion to another. Co. Litt. 
148 (a). 

(a) On nil debet pleaded in debt for 
rent. 1 Vent. 276; Com. Dig. Suspbn- 
8I0N [E.]; Cro. Elix. 771; Cro. Jac. 160. 

(b) Smith V. Malings, Cro. Jac. 160. 
Smith V. Baleigh, 3 Camp. 513. Stokes 
V. Cooper, lb. 514, n. Balston v. Beeve, 
Ld. Ray, 77. Clun's Case, 10 Rep. 128. 
Bum V. Phelps, 1 Starkie's C. 04. Tom^ 
linsonY.Bay,9B.&cB.eS0, Butthelessee 
may at his election, on eviction from part, 
abandon the whole. 

(c) BaOey v. Culvertcell, 8 B. & 
C. 440 (and see Appendix). Here the 
act of the agent, ratified by the principal, 
bad the effect of an order given by the 



APPROPRIATION OP PAYMSNT.^^ARSON. 



49 



APPROPRIATION OF PAYMENT. 5^* PAYMENT. 

APPURTENANT (cf). See TRESPASS. 

ARBITRATOR. See AWARD. 

ARREST. 

It must be proved that the arrest was by authority of the bailiff; but it 
is not necessary to show that he was actually present, or in sight, or within 
any precise distance (e). See tit. Sheriff. — Trespass. 

ARSON. 

. To establish this offence it is essential to prove, ^r«f, the act of setting fire 
to and burning ; seeondfy, the house, &c ; thirdly ^ of the owner specified in 
tiie indictment ; fourthly with a felonious intent (/). 

First. The act of setting Jire to and bundng. — To constitute arson at common Act of set- 
law, there must be an actual burning of the house, or of some part of it (g), thig fire to. 
And the statutable description *^ set fire to," does not enlarge the common 
law offence in this respect (h). It is necessary to prove that some part of the 
house was burnt. Upon an indictment under the statute 9 G. 1, c 22, for 
burning an out-house called a paper-mill, proof that a large quantity of paper 
drying in a loft of the mill had been set on fire, no part of the mill itself 
having been set on fire, was held to be insufficient (i). But it is not neces- 
sary to show that the whole was consumed (J). The act may consist in the 
prisoner's burning his own house, if he do it with intent to burn the house 
of another, which is in consequence burnt, or even with a felonious intent 
to defraud an insurer (h). 

Seeondfy. The houMe, ^.— Arson, at common law, is ap offence against Hoase. 
the habitation, and therefore the house must be proved to be a dwelling- 
house (/). The offence at common law extends to the burning not only of 
the dwelling-house, but also of all out-houses which are parcel of the dwel- 



prineipa], and accepted by the brokers. 
See CaanoaXho v. Bum. As to the ap- 
propriation of a cargo in the hands of an 
agent as a security for advances by a 
third person, see JFUher v. Miller, 1 Biogh. 
150. A. directs £., his debtor, to pay C. 
his creditor, B. assents, and pledges lilm- 
self to pay C, A, cannot revoke the order. 
Hodgaon v. Andenon^ 3 B. & C. 842. 
Before payment A. becomes a bankrupt 
His assignees cannot recover, for C is 
entitled in equity to an assignment of debt. 
Crmefoot v. Ovmey, 9 Bing. 372. 

(a) Land cannot be appurtenant to 
land. Buzzard y. Capel, 8 B. & C. 141. 

(e) Blotch y. Archer, Cowp. 65. As to 
arrest within a privilegeid jurisdiction, see 
Spinksv,Spinis,nBxmt,SU, Ifasheriff 
arrest a defendant on one writ, he is ar- 
rested as to all writs then in the sheriff*s 
office. Per Bayley, J., Shorty, Vantittart, 
York, 1821. See tit Trespass. 

(/) See the allegations, Criminal Plead- 
bgs, 417. 

(jg) 3 Inst. 66; 1 Hale, P. C. 568 ; 

VOL. 11. 



East's P. C. 1020; 1 Haw. c. 38, s. 4; 
2 Bl. Comm. 222. 

(h) This was so held under the stat 
9 Geo. 1, c. 22 (now repealed). East's 
P. C. 1020. R.yr. Spalding, R.r.Seeve. 
R. Y. Taylor, Leach C. C. L. 68. The 
late Stat 7 & 8 Qeo. 4, c. 30, s. 2, uses the 
same words, and makes it capital, unlaw- 
AiUy and maliciously to set fire to any 
house, stable, coach-house, outhouse, ware- 
house, office, shop, mill, malt-houae, hop- 
oast, bam or granary, or any building or 
erection used in carrying on any trade or 
manuiacture, or any branch thereof, whether 
the same be then in the possession of the of- 
fender, or of any other person, with intent 
thereby to injure or defraud any person. 

(i) R. v. Taylor, Leach's C. C. L. 58. 

0) 3 Inst 66; 1 Hale, 568; 1 Haw. 
c. 39, s. 4. 

(*) R. V. Probert, East's P. C. 1030 ; 
6 St Tr. 222. And see the stat. iupra, 
note (A). 

(0 See Criminal Pleadhigs, note (A). 
And see the late stat. mpra, note {h), 

E 



50 AB80N : HOU8B. OWNBRSHIP. 

ling-house, although not adjoining to it, or under the same roof (m). In 
what cases an out-house is to be considered as part of the dwelling-house 
will be more fully considered in treating of the evidence in case of burglary. 
The burning of a bam, containing com and hay, was felony at common 
law (fi). A common gaol was held to be a house, under the stat. 9 Geo. 1, 
c. 22 (o). An indictment under that statute for burning an out-house^ was 
sustained by proof of burning an out-house, although it was part of a dwel- 
ling-house (p) ; for it is still an out-house, and the statute did not alter the 
nature of the crime, but only excluded the principal more clearly from 
clergy (q). 
Ownership. Thirdly, Ownership and possesion. — ^The house is described either as the 
house of a particular person specified in the indictment, or under the stat. 
7 & 8 Geo. 4, c. 90, is described to be in the possession of the prisoner, or of 
some other person. If it be described generally as the house of another, then, 
since arson is an offence immediately against the possession, the house must 
be proved to be in the possession of that person, wo jure (r). Hence if the 
house be alleged to be the house of another, and it appear that the prisoner 
was in possession of the house under a lease for years, it is not felony («). 
So an indictment against a prisoner for burning his own house was bad (0 
before the stat. 43 Geo. 3, c. 58 (u) ; but it is no defence that the prisoner 
resided in the house by sufferance, as a pauper, by permission of the oyer- 
seers, without any interest of his own ; for the possession in such case is in 
the overseers, by the occupation of the pauper (x). Where a widow, who 
was entitled to dower out of a house in the possession of a tenant, which had 
been mortgaged, her son, being entitled to the equity of redemption, pro- 
cured another to bum the house, it was held that she was guilty as an acces- 
sory before the fact, since the possession was in the tenant on behalf of her 
son ; and her title to dower, supposing the tenant's interest to be out of the 
case, did not give her even a right of entry (y). And it seems, that even if 
the prisoner had been entitled to the inheritance, and the tenant had been 
in possession, she would have been guilty of felony (z). As the offence is 
against the possession, it is essential to prove that person to be in possession 
who is alleged in the indictment to be the owner (a). In Glandfield's Case (b), 
the premises (which were out-houses) were alleged to be the mother's. It 
appeared in evidence that they were the property of Blanche Silk, widow, 
the mother, but that one part was occupied jointly by the mother and son, 
and the rest by the son alone, and the variance was held to be fatal. On an 



(m) 1 Hale, P. 0.567, 670; Summ.SC; 
8 Inst. 67. 09 ; 1 Haw. c. 39, s. 1, 2 ; 
4 Bl. Comm. 221. 

(n) Bast's P. C. 1020; and so {teniae) 
was the burning of a bam simply. 

(o) R. V. Donnoviui, Leach's C. C. L. 81 . 
Bepealed by the stat. 7 & 8 Qeo. 4, c. 30. 

(p) B. V. North, East's P. C. 1021. 

(q) R, v. Breetne, East's P. C. 10-21. 

(r) Bast's P. C. 1022. 1033. See East's 

P. C. tit. BURGLARr. 

(t) R, ▼. Holmeiy Cro. Car. 876. W. 
Joues, 351 ; 1 Halo, P. C. 568 ; 3 Inst 66. 
The authority of this case was questioned 
by Mr. J. Foster, who thought that the 
house night with propriety l^ considered 
U\e house of the landlord ; and in R, v. 
Bretme^ East's P. C. 1020, Ld. Mansfield 
saM, that if Uobn^t Cote had come again 



in question he should have been of a dif- 
ferent opinion. 

(r) R, V. Spalding, East's P. C. 1025 ; 
4 Bl. Comm. 222-3. P<nUter*$ Case, 11 
Co. 29. R, v. Scqfieldy Cald. 397. East's 
P. C. 1028. 

(tt) Now repealed, and the stat. 7 & 3 
Q. 4y c. 30, is substituted ; vide 9upra, 49. 

(x) R, V. Qower, East's P. C. 1027. 
Qu, whether in such a case the pauper 
could have eommitted a burglary in the 
house? 

(y) R. V. Ann Course, Foster, 113. ' 

{z) Ibid. 

(a) R. V. Breeme, Leach's C. C. L. 
261. JR. V. Spaidinif, lb. 258 ; 11 Co. 29. 
A. V. Holmes, Cro. Car. 876. Rickman'i 
Case, East* s P. C. 1034. 

(6) East's P. C. 1034. 



.] 



^3 

h 

' j - 

' ' T 
it 

%^ 



!'J 



arson: intkntion. 



51 



indictment against the prisoner for burning his own house, with intent to 
bum the hoiQse of A. B, in one count, and of C, D, in another count, it 
appeared that A. B^ the owner of the latter house, had let it to C. 2>. for 
ninety-nine years, who had let it to E. P. for one year, who had let it to 
Q. H, for three months, and the variance was held to be fatal (c). 

Fawrthly, With a felonious, intent, ^e, — ^An indictment at common law Felonious 
sDeges that the prisoner did the Victfelonioush/, wilfully, and maliciously (d). *°*®"^ 
And althoagh the words maliciously and wilfully were no part of the de- 
seriptioii of the offence under the stat. 9 Geo. 1, c. 22 (e), yet, in order to 
oust the offender of his clergy under that statute, it was held that it must 
appear that the act was wilfiU and malicious (/). If A, set fire to his own 
house, with intent to defraud the insurer, and the house of B., his neighbour, 
be burnt in consequence, and it was likely that this circumstance would 
happen, A. is guilty of arson, since the common law connects tbe primary 
felonious intention with the immediate consequence (g). So if A., intend- 
ing to bum the house of B., set fire to the house of C, and burn it, this, 
for the same reason, would be evidence of a felonious intent to bum the 
house of C. (A), although the house of B, escaped by some accident. So if 
A. procure B. to bum the house of C. and he does it, and the fire extends to 
the house of D. and bums it. A, is accessory to burning the house of D. (t). 
But if it appear that the house of the prosecutor was burnt by the negligence 
of the prisoner, however gross, or by accident, or even by his committing an 
milawiril act, which does not amount to a felony, the burning will not 
amount to arson. As, where an unqualified person, shooting at game, sets 
fire to the thatch of a house ; or where a person, is committing a trespass, 
by shooting at the poultry of another (A), provided he did not mean to steal 
them. Where the intent is laid to defraud the insurer, the books of the insur- 
ance company are not evidence without notice to produce the policy (/). 
Where the prisoner's goods, in a particular house, had been insured, and a 
memorandum had been indorsed on the policy, stating that the insured goods 
had been removed to another house, and the policy had been properly stamped, 



(c) S. V. Pedley, Cald. 818 ; Leach's 
C C. L. S77; 1 Hale's P. C. 268; East's 
P. & 1026. 

(d) See Criminal Plead. 417. 

(«) Now repealed; the words of the 
Stat. 7 & 8 0. 4, e. 90, are, anlawfblly and 
maUeioiisl^, and with intent to injure or 
defraud any person. 

(/) 1 Hale's P. C. 667. 560 ; 3 Inst. 67. 
Iflnfoft'j Cam, Easfs P. C. 1021. lb. 
1039. Criminal PL 419, n (o). 

ijf) B, V. iMoae, Easfs P. C. 1081. 
Hie prisoner was indicted for a misde- 
BeaBor in setthig fire to his own honse, 
whereby tiie nelghboaring and contignonS 
dweOing-hoases of other persons were en* 
dangered; and upon its appearing, from 
the statement by eonnse), that the act was 
done with faitent to defhind the hisorers, 
and that the adjoining faonses were ac- 
tually bomt, Bnller, J. was of opinion that 
flie miademeanor was merged in the fe- 
lony, and directed an acquittal. Note, 
Out at that time tiie baming a man's own 
hoase witii intent to defraud an insurer 
was bat a misdemeanor; there was there- 



fore no primary felonious intent. Tlie 
offence was made felony by the erpress 
provisions of the stat. 43 Geo. 8, c. 68, s. 1, 
and by the subsequent stat. 7 & 8 Geo. 4, 
c 30, the former act being repealed. And 
inProbert*t Cote, East's P. C. 1030, where 
the prisoner was indicted and convicted 
of a misdemeanor for having set fire to his 
own house, and thereby endangering con- 
tiguous houses, Grose, J. said, on passing 
sentence, tliat if any of the contiguous 
houses had been actually burnt in eon« 
sequence of the defendant's wilful and 
malicious act in setting fire to his own 
house, (which was proved to hare been 
done in order to cheat the insurance- 
ofBce,) it would clearly have amounted to 
a capital felony. 

(h) 1 Hale, 560; 3 Inst. 67; 1 Haw. 
c 08, s. 5; East's P. C. 1019. 

(t) Plowdcn,476; fiasfs P.C. 1019. 

(k) 1 Hale, 569 ; 3 Inst. 67 ; 1 Haw. 
c. 39, s. 5; East's P. C. 1019. 

(/) B, V. JDoran, cor. Kenyon, C. J. 
I Esp. C. 127. 

B 2 



62 



ASSAULT AND BATTBRY. 



General 
•▼idence. 



Tarlanee. 



Evidence 
upon an 
indictment 



but the memorandum had no new stamp ; on the trial of the prisoner for 
setting the latter house on fire, it was objected that the memorandum could 
not legally be received in evidence for want of a stamp. The case was 
argued before the twelve Judges, and the prisoner was afterwards dis- 
charged (m). Where the indictment was framed under the stat. 43 Geo. 3, 
c. 58, 8. 1 (ft), it was held that the act of wilfully burning the property 
carried within itself sufiicient evidence of an intention to injure the owner, 
without proof of any other act which indicated malice (o) ; although the 
principal object of the statute was to comprize the case of a person burning 
a house of which he was tenant or owner, to the injury of his landlord or 
neighbour, or to defraud the insurers (p). 

Oeneral Evidence. — In Richman's Case (q)y evidence was adduced that a 
bed and blankets, which had been taken from the house at the time of the 
fire, had been in the possession of the prisoners, and had been concealed by 
them from that time. Buller, J. doubted at first whether such evidence of 
another felony could be admitted in support of this charge ; but, as it seemed 
to be all one act, although the prisoners came twice to the house fired, which 
was adjoining to their own, the evidence was admitted. The evidence to 
prove this ofience, as in other cases, resolves itself into the probable motives 
of the prisoner, his opportunity and means of committing the ofience, and 
his conduct. Where the prisoner is charged with setting fire to his own 
house, with intent to defraud the insurer, the value of the property as com- 
pared with the amount insured, obviously becomes a question of great 
importance, in order to establish or repel the inference of motive. 

A variance from the ownership, as laid in the indictment, is fatal (r). 
Upon a charge of burning an out-house the prisoner may be convicted, 
although it appear that the out-house was part of a dwelling-house (s). An 
aUegation that the ofience was committed in the night-time need not be 
proved (e). 

ASSAULT AND BATTERY. 

For the evidence in an action for an assault and battery, see Tbbspass. 

An indictment for an assault is supported by evidence of an attempt, with 
force and violence, to do a corporal hurt to another (u). An indictment for 
a battery is sustained by evidence of the smallest injury done to the person 
of a man, in an angry, rude, revengeful or violent manner (x). A previous 
assault upon the defendant by the prosecutor is evidence in justification (y) 
under the plea of not guilty. But in order to make this a good justification. 



(m) A. V. GUlson, S Leach, 1007, 
4th edit ; 1 Taunt 05. Phillips on Evi- 
dence 467. 

(n) Now repealed; but the language of 
the Stat. 7 & 8 G. 4, c. 90, is nearly shnilar, 
suproy 49, note (i). 

(o) FarringtonU Case^ Rnssel, 1674. 
The fact of the prisoner having set his 
master's mill on fire was clearly proved by 
his own confession ; but It appeared that 
he was in other respects a harmless in- 
offensive man, and that he had never had 
any quarrel with his masters. After con- 
viction, sentence was respited to take the 
opinion of the Judges upon this clause of 
the statute ; and they held the conviction 
to be proper, since the burning of the mill 



must, under the circumstances, have been 
done with an intention to Injure. 

<p) Ibid. 

Iq) East's P. C. 1096. 

(r) See above, p. 60 ; and BicknunCs 
Cote, Easfs P. C. 1094; Glamffield's 
Case, lb. 

(f) North's Case, East's P. C. 1021. 

(t) Minton*s Case, lb. 

(«) 1 Haw. b. c. 62. The riding after 
a plaintiff, and threatening to horsewhip 
him, so as to compel him to run into a place 
of shelter, is an assault inlaw. Afartin 
V. Shepper, 9 C. & P. 97a 

(x) 1 Haw. b. c. 62. As by spitting 
upon him. B. v. Cotestoorth, 6 Mod. 17S. 

(y) Per Holt, C. J., 6 Mod. 172. 



Assault and battery. 63 

it seems that it ought to appear that the Btriking by the defendant was in 
his own defence, and was in proportion to the attack made ; and that if A. 
giye B. a slight blow, it will not justify B, in maiming A,, or in beating him 
riolently and outrageously, and without a yiew to his own defence {z). 

Where the defendant is indicted for an assault, with intent to murder, and 
it appears that if death had ensued it would have amounted to manslaughter 
only, the defendant should be acquitted on the first count (a). 

AsBouU with intent to rob, — In Parfaifs Cage (3), the indictment charged Aasault 
an assault with a pistol, with intent to rob. It appeared in evidence that the J^^ intent 
prisoner did not make any demand or motion, or offer to demand the prosecu- 
tor's money, but only held a pistol in his hand towards the prosecutor, who 
was on the coach-box, and bade him stop ; and L. C. J. Willes and Chappell, 
Justices, are said to have held, that the case was not within the act, because, 
no demand was proved ; but the words of the act are in the disfunctwe ; and 
where the indictment is framed upon the first branch of it, a demand is 
unnecessary, and it is for the jury to decide with what intent the assault 
was made («). 

In Thamafe Case (<f) it appeared that the prosecutor, Lowe^ was in a chaise, 
and that the prisoner, after following it for some time, presented a pistol, to 
Brmg^ the postboy, bidding him stop, with many violent oaths, but making 
no demand of money : the carriage stopped, and the prisoner rode up to the 
chaise, but perceiving that he was pursued, immediately rode away. Upon 
an indictment for'an assault on Lowe with intent to rob him, the prisoner 
was acquitted, because there was no evidence of an assault upon Lowe. And 
he was acquitted upon an indictment for an assault on Bring, the postboy, 
with intent to rob him, because it appeared that there was no intent to rob 
him ; for when he stopped, the prisoner made no demand upon him, but went 
up to the person in the chaise (e). 

And in the case of Trusty and Howard (y^, where the prisoners were indicted 

(z) Coekerqft t. Smith, 2 Salk. 642. In Bawion, cor, Holroyd, J., York Summer 

an action for assault, battery and may- Am« 1821, i^fra, tit. Variancb. The 

hem, the plea of ton a$tauli defnetne was same point was also ruled by Hallock, B. 

hdd to be a good plea, because it might York Summ. Ass. 1827 ; vide ii|/Va, tit, 

be sach an assault as endangered the Vahiancb. The defendant, a soldier, 

party's life; but npon the question what marching la file along the Strand, wan- 

assaolt was sufficient to maintain such tonly jostled the prosecutor off the pare^ 

a plea in mayhem, Holt, C. J. said that ment, who thereupon struck him with a 

Wadham and Wyndham, Justices, wonld small stick which he had in his hand, on 

Dot allow it if it was an unequal return, which the defendant aimed a blow at the 

but that the practice had been otherwise, prosecutor with his bayonet fixed on his 

and was fit to be settled ; that for every musket, and thrust him under the ear ; 

assanlt he did not think it reasonable that and Ld. Kenyon, behig of opinion that if 

a man should be banged with a cudgel ; death had ensued it would have been 
and that the meaning of the plea was, ' manslaughter only, directed an acquittal 

that he struck in his own defence. That on the ^t count. JR, v. Mytton, East's 

if A. strike B,, and B, strike again, and P. C. 4'U. 

they close immediately, and in the scuffle (b) Easfs P. C. 406. Under the stat. 

B. maims A., that is $on assault ; but, if, 7 O. 2, c. 20. This is now repealed; but 

upon a little blow given by A. to B., the stat. 7 & 8 6. 4, c. 29, s. 6, makes 

B. give him a blow that maims him, that it felony, punisliable with transportation 

ii oot son assault demesne. See 11 Mod. for life, kc, to assault with intent to rob, 

43, 8. C. or witli menaces, or by force to demand 

(a) Per Ld. Kenyon, B, v. Mytton, property, with intent to steal, ke, 

Easfs P. G. 411. Bacon's Case, 1 Lev. (c) See Easfs P. C. 417. 

146; 1 SkL 280; Stanndf. 17. But if (d) East's P. C. 417; Leach, C.C.L. 372. 

tliott be hot one count, semble the defend- («) Bast's P. C. 417 ; Leach, C. C. L. 

aat may be found guilty of the assault 372. 

fimpiy. See Crim. PI. 388; and JR. v. (/) Sess. Pap. 735; Grim. PL 404. 

e8 



64 



ASSAULT AHD BATTBBT. 



AsMolt 
with intent 
tofpoil 
eloUiet. 



AsMult on 
account of 
money won 
at play. 



for ft felon ioQf ftMftuH, with an offensive weftjion, with intent to rob| it 
appeared that one of theoiy presenting a pistol to the proseenlor, bade him 
stop, which he did, but called out for assistance ; on this the prisoners 
threatened to blow his brains oat if he called out any more, which he nerer- 
theless continued to do, and the men were taken ; and, although no demand 
of money was made, they were conricted and transported. Under this 
branch of the aet it must be prored that the assault was made upon the 
person whom the prisoner intended to rob. And if the assault be made on 
A, B f and it appear in eridence that the intent was to rob C D^ the prisoner 
cannot be conricted. 

In 8harwm*» Case {g\ it was held, that an allegation that the assault was 
made with an offensiye weapon called a wooden staff, was satisfied by 
eiidence of an assault made with a stone (A). 

A99auU wUh intent to gpoU chthesy j-c, 6 Geo. 1, c. 28, s. 66 (t)w— In Ben- 
wicke WUUanu^s Case (A), a majority of the Judges appear to have been of 
opinion that a prisoner ought not to be convicted where it appeared in 
evidence that his primary intention was to injure the person, and not the 
clothes. But BuUer, Justice, was of a different opinion, relying on the 
authority of Cohe and Woodbunis Case, He considered that the intent of 
the prisoner was to wound the party, by means of cutting through her 
clothes ; and the jnry, whose sole province it was to find the intent, had 
found that fact. The case was ultimately decided on a different point, and 
therefore, cannot be considered as a direct authority upon this point. On 
the other hand, the case of Cohe and Woodbum is a most strong and express 
authority on the other side, and seems to rest upon a very plain and sub- 
stantial principle of justice, frequently recognized by one of the mostenUght- 
ened Judges that have presided in our courts ; namely, that every man 
shall be presumed to contemplate that which is the natural and immediate 
consequence of his act. 

Under an indictment for an assault, on account of money won at play (/), 
it is necessary to adduce proof to show that the assault was made or chal- 
lenge given on account of the money won at play, which is question of fact 
for the jury ; and this may be proved, although the assault was not commit- 
ted at the time of playing, and although it was not committed till the day 
after (m). The prosecutor having lost bis money to the defendants, they 
proposed to depart ; the prosecutor objected ; and complained that they 
would not give him an opportunity of recovering his loss : Bulier, Justice, 
directed an acquittal, being of opinion, that since the game was over before 
the assault began it could not be said to have arisen out of the game, but 
out of what had been said to the defendants ; and that to bring the ease 
within the statute, it was necessary that the assault should arise out of the 
play, and during the time of the game (n). But in the subsequent case of the 
King v. Darley (o), it was held that the act was not confined to an assault 
during the time of play {p) \ and it was considered to be a question for the 



ig) East's P. C. 421. 

(A) 8c« Crim. PI. 86. 405. 

{}) See the averments, Crim. Plead- 
ings. 

(k) Leach> C. C. L. 697 ; East's P. C. 
484. 

(0 Under the stat. Ann. c. 14. See 
Crim. Pleadings, 407, and the stat. there 
cited. 



(m) R. V. JDarley, 4 East, 174. 

(») R. V. RandaU and othersy East's 
P. C. 423. 

(o) 4 East, 174. 

(p) Ld. Ellenborongh observed, that it 
more freqnently happened that suoh dis- 
pntes did not arise till after the plsy was 
over. 



AS6BTS.^A88IGKBS. — ASSUMPSIT. 



55 



jaiy, whether a subsequent assault was made on account of the money 
preriously won (q), 

ASSETS. 

The principle of distributing assets is, that where there are two funds. Assets. 
and one party may claim under either, but another is confined to one, the 
former party will primarily be excluded from the latter fund (r). 

ASSIGNEE. 

For the eridenoe in an action by the assignee of a bankrupt, see tit 
Bahkbuft. 
For the evidence in an action by an assignee of a reversion or term, see 

COTXKANT. 

Where a plaintiff brings an action as assignee, and the assignment is put 
in issue by the pleadings, he must give regular evidence of the different 
steps, by the production and proof of the requisite deeds, will, or probate, 
(if the subject-matter be of a chattel interest), according to the circumstances 
of the case. Where a defendant is sued as the assignee of a term, it is 
mdReieskt primd facie evidence, on the part of the plaintiff, to prove the pay- 
ment of rent by the defendant, or even to show that he is in possession of 
the premises (#) ; for he is not privy to the defendant's title. But if the de- 
fendant show that he is but the under-tenant under the original lessee, 
that will defeat the action, although a reversion of one day only be left in 
the original lessee (t). 

An admission by a lessee that he has assigned the premises to another, is 
evidence of the fact against himself, although it could not have been effected 
without an instrument in writing (u). 

ASSUMPSIT (x). 

The essentials to this action (y), to the proof of which the plaintiff may be 
put by proper pleas, are a promise by the defendant, as stated in the decla- 
ration, founded upon a sufficient eonsideratian (z), and in some instances the 
performance of canditiafu precedent by himself and a breach of that promise 
by the defendant. The declaration is either upon a special contract, or upon 
a general indebUatus assumpsit, 

A special promise may be proved ; 1st. By a written agreement. 2dly. Proof of the 
In some instances by oral evidence. Or, 8dly. It results from the special P«>™iW' 
circumstances of the case. 



{q) Heath, J., who tried the qnestioD, 
left it to the jary to say whether the a»> 
fault was committed on aecoont of the 
abniive language used at the time, or on 
tcoant of &e money won the day before. 

(r) 8 Powell oo Dev by Jarman, SO. 

{$) Doe Y. ParkeTy cor, Ld. Kenyon, 
Stafford Snmm. Ats. 1768, Peake's £▼. 
904. Holford v. Hatch, Doug. ISd. Hare 
V. CatoTy Cowp. 766. 

(0 Ibid. 

(«) Doe V. WatsoHy 2 Starkie's C. 290. 

(«) For proofs in actions of special 
atsvmpsit on bills of exchange, gaaranties, 
Ice., see the titles respectively. 



(y) Assumpsit is the proper form of 
action in all eases of iigiiry from a breach 
of contract not under seal. 

(2) A consideration may consist in any 
act or omission either beneficial to the 
defendant, or prejudicial to the plaintlif. 
Bee Bunn t. Guy, 4 East's R. 1Q4; March 
V. Culpepperf Cro. Car. 70; Sturlyn ▼. 
Albany^ Cro. Ells. 67 ; 4 Taunt. 611. It 
is sufficient if the benefit accrue to a third 
perscm at the defendant's request ; and it 
seems that any benefit of value will be 
sufficient to support a promise. But the 
ooDsideration must be of some value. . A 
promise in consideration that the plaintiff 

£ 4 



56 



ASSUMPSIT : WRITTEN AQBBEMBNT. 



Proof of 

written 

contract. 



Written J*tr^ By a written agr cement, -^In order to establish a written contracty 

agreement, the plaintiff, if he have it in his possession, must produce it, and prove it by 

evidence of the defendant's signature (a) ; or by the evidence of the attesting 

witness, if the instrument be so attested. It may then be read in evidence, 

provided a proper stamp has been affixed to it (b). 

If the written contract has been lost or distroyed, after due proof of its 
former existence and subsequent loss or destruction, parol evidence may be 
given of its execution by the defendant, and of its contents ; such secondary 
evidence is also admissible where the plaintiff has proved that the instrument 
is in the possession of the defendant, and that he has had notice to produce 
it. If parol evidence be given of an agreement proved to have been lost, it 
should also be proved that it bore a proper stamp (c). But against a party 
who refused to produce it, a proper stamp would be presumed (d). 

Parol evidence cannot be received where the instrument was not, when in 
existence, duly stamped, even although it has been destroyed by the party 
objecting to the want of a stamp («). 



would make an estate at will to the de- 
fendant was held to be insnfflcient, for the 
plaintiff might Immediately revoke it. 
1 Roll. Ab. 3d, pi. 20. So the mere per^ 
formance of on act which the plaintiff was 
otherwise bonnd to perform, is not a snfR- 
cjent consideration. Harris y. Wat$onf 
Peake's C. 72. StUk v. Meyrick^ 2 Camp. 
317. The allowing the defendant to weigh 
the plaintiff's boilers will support a pro- 
mise to return them. Bmnbridgey»Firme»- 
ton,! P. & D. 1. 

Natural affection, though sufficient to 
raise an use, will not support a promise. 
Brett V.J, S, ^ W\fe, Cro.Eliz 755; and 
it is very doubtful whether a mere moral 
consideration is sufficient. See note to 
Wennall v. Adney, 3 B. & P. '249; and 
see the case of Wennall v. Adney, and 
if^ra,69. But the release of a merely equit- 
able right is a good consideration in law. 
WelU V. Well*, 1 Lev. 273. Thorpe v. 
Thorpe, Ld Raym. 663. Contrk, Preston 
▼. ChrUtmas, 9 Wils. 87. So the con- 
sideration may consist in some loss or 
damage to the plahitiff himself. As if 
he forbear a legal suit to the debtor, 
1 Roll. Ab. 29. pi. 40. Bond v. Payne, 
Cro. J. 273. King v. WilU, Str. 873; 
Cro. J. 47, But the forbearance must 
either be for some certain or definite, 
(Mapes ▼. Sidney, Cro. J. 683. Fisher v. 
Richardson, Cro. J. 47.; 1 Roll. Ab. 23, 
pi. 25, 26), or at least a reasonable time. 
Johnson v. Whitcott, \ Roll. Abr. 24, pi. 
33. See also Seoti v. Stephens, Sid. 89 ; 
Lev. 71 ; Roll. R, 27. Keech v. Kenne- 
gall, 1 Yes. 125. Wliere the plaintiff was 
about to enforce a debt of 57 1, and costs 
65 1., by an execution against the goods of 
A., the defendant, in consideration the 
plaintiff would forbear to execute the writ, 
promised to pay him 107 /■ In seven days, 
it was held to be a sufficient consideration 
to support the promise, and that the action 
was maintainable. Smith v. Algar, 1 B. &, 



Ad. 603. In assumpsit for breach of an 
agreement "to remain with the plaintiff 
two years, for the purpose of learning the 
bnsiness of," &c,, held, that there being no 
stipulation to instruct, and no consideration 
for the defendant's undertaking, it was not 
binding on the latter to serve. Xms t. 
Whitcomb, 5 Bing. 34; 2 M. & P. 80; 
and 3 C. & P. 289. Again, the consi- 
deration must move from the plaintiff. 
Bourne v. Mason, 1 Vent 6. Crow y. 
Rogers, Str 592 ; Button et ux y. PooL 
2 Lev. 210; 1 Vent 318.334. For the 
very notion of a contract implies mutuality 
of intention and privity between the parties. 
A. agrees to pay the rent of tolls hired from 
the commissioners of a road to the trea- 
surer ; the treasurer cannot recover. Pi- 
gott V. Thompson, 3 B. & P. 147, if{fra. 
A. having made a contract with R, to 
supply him with a carriage for three years, 
transfers his interest to C, a secret part- 
ner; il.and C. cannot jointly sue JB.,who 
refuses to continue the contract with C 
Robson V. Drummond, 2 B. & Ad. 300, 
Lastly, the consideration must be legal, 
vide if{fra ; for it wonld be against legal 
policy to sanction in any way an illegal 
agreement. 

(a) The signature of the party wonld 
not conclude him without acceptance by 
the other party ; see Payne v. Ives, 3 D. 
& R. 664 ; but the very delivery of an ab- 
solute undertaking, signed by the defen- 
dant, would be evidence of a mntnal agree- 
ment, till the contrary was shown. 

(fr) Vide vr^fira, tit. Stamp.— Aorbe- 

MB NT. 

(c) Supra, VoL I. Index, tit Stamp. 
Goodier v. Lake, 1 Atk. 946. R, y. Sir 
T, Culpepper, Skinn. 677. 

(d) Crisp V. Anderson, 1 Starkie's C. 35. 

(e) Rippiner v. Wright, 2 B. & A. 478. 
Non eonstat that the commissioners wonld 
have stamped it on payment of the pe- 
nalty.. 



▲ssuMinuT : oral bvidbmcb. 



57 



Searndfy. B^ oral evidence.-^ An oral contract, agreeing with that stated in Proof of th« 
the declaration, may be proved by any witness who was present at the time, orai*te«tU ^ 
or who heard the defendant admit the existence of such a contract. In two mony. 
classes of cases, however, parolevidence is inadmissible: Jinif where the par- 
ties have condescended upon a written contract, for that is the best and only 
evidence of the intention of the parties, so long as it exists, that can be pro- 
duced; and when it is lost, or in the hands of the defendant, who refuses to 
produce it scfter notice, secondary evidence is to be given of its contents : 
fecomdfy, where written evidence of the contract is expressly required by the 
Statute of Frauds (/>. 

Where a party proposes to prove that which has been agreed on in writing, 
it is necessary to produce ^e writing as being the best evidence (^). In an 
action for use and occupation, it appeared upon cross-examination that 
there was an agreement in writing, which had not been stamped, and the 
plaintiff was nonsuited (A). The rule does not apply where a mere memo- 
randum has been made in writing, preparatory to an agreement, but which 
has not been signed as an agreement (»). Upon the letting of premises to a 
tenant, a memorandum of an agreement was drawn up, the terms of which 
were read over, and assented to by him ; and it was agreed that he should^ 
on a future day, bring a surety, and sign the agreement, which he never 
did : it was held that the memorandum was not an agreement, but a mere 
unaccepted proposal, and that the terms might be proved by parol evidence (t). 
So where a verbal contract is made for the sale of goods, and is put into 
writing afterwards by the vendor's agent, for the purpose of assisting his 
recoUection, but the memorandum is not signed by the vendor, it need not 



(/) If^ftu, FsAUDS» Statute of. 

(if) See Vol. I. and Index, tit. Bbst Evi- 
i>8NCB,and ir^ra, tit Parol Evidbncb. 
In an action for work and labour in bnild- 
Ing, Jtc, it appeared that there wa» an 
agreement in writing, relating to the claim, 
and it was held that the plaintiff could not 
proceed without producing it, nor recover 
for items as extras proce^ed on even after 
an admission by the defendant that they 
were such, and which the written instru- 
ment might furnish a means of ascertain- 
ing the amount to be paid for : the course 
would be highly inconvenient if the Judge 
were to be called upon to look into it, to 
ascertain whether items alleged to be €sr- 
tnu were or were not included in it. Vifi' 
cent ?. CoU^ 1 Mo. & M. 267, and 3 C. & 
P. 481. Where, after the plaintiff had 
made out and closed liis case, it appeared 
from the defendant's evidence that there 
existed a written contract, but which, for 
want of being properly stamped, he was 
onable legally to pxt)duce ; it was held that 
the plaintiff could not be nonsuited for its 
noo-production, upon the mere assertion of 
tlie defendant, since tlie written instrument, 
if prodoced, might have turned out not to 
apply to the contract in question. Fielder 
V. Ba^t 6 fiing. 332, and 4 C. & P. 61. 
Where, in an action for woric and labour in 
printing, the case was opened on the quau" 
turn flMTMs^t without stating that there was 
a spseid contract ; after which, the defend- 



ant having proved that the plaintiff had 
agreed to do the work at a certain sum, 
the plaintiff proposed to show the special 
contract, which was different from that set 
dp by the defendant ; it was held that he 
could not be permitted to abandon the cause 
of action first relied on, and resort to that 
which brought to have set up in the out- 
set, nor be allowed to impeach that proved 
by the defendant. Soulby v. Pie^ford^ 
2 Moore & P. 545. Where one of the par- 
ties to an agreement, after its execution, 
and within the twenty-one days allowed 
for stamping it, obtained possession of it, 
and swore it was lost, the Court ordered 
him to produce a copy in his possession to 
be taken to the Stamp-office, and that if 
the plaintiff should produce the same on 
the trial, stamped, the defendant should 
not be permitted to produce the original 
agreement. Bou^ld v. Godfrey^ 5 Bing. 
418. Where a written agreement refers 
specifically to a plan, if there be clear and 
satisfactory parol evidence to identify It, it 
is admissible for that purpose ; where how- 
ever it was not satisfactorily shown to the 
Court that tlie parties had agreed upon 
either of two suggested, the Court held 
that it was properly refused. Hodges v. 
Horffall, 1 Russ. 6c M. 116. 

(h) Brewer v. Palmer , 3 Esp. 213, eor, 
Ld. Eldon; and see Jiffery ▼. Walton, 
1 Starkie's C. 267. 

{%) I)oe v. Cattwrighty 3 B. & A. 326. 



58 



assumpsit: special. 



Trom spe- 
cial circiun- 
■tances. 



be produced (A). The plaintiff in ejectment having made out Aprimd facie 
case, by proof of a payment of rent, and notice to quit, it appeared, upon 
cross-examination of his ivitness, that an agreement relative to the same 
land had been given in evidence on a former trial between the same parties, 
and had been seen the same morning in the hands of the plaintiff's attorney, 
the contents of which the witness did not know; no notice having been 
given by the defendant to produce that paper, it was held that the plaintiff 
was not bound to produce it ; for although it was an agreement relative to 
the land it might not at all affect the question between the parties (/). 

Tkirdfy* Where the promise results from the special circumstances of the 
case, those circumstances must be proved ; as, where the plaintiff declares 
upon a contract by the defendant, as his tenant, to use the farm in a husband- 
like manner, according to the customary course of good husbandry in that 
part of the country, the plaintiff must prove that the defendant occupied 
the lands in question as his tenant, and the promise results as an inference 
of law from the premises (m). 



(k) Dali$m V. Stark, 4 Esp. C. 163. See 
Doe T. Morrit, 18 East, 236; 3 B. & A. 
326. 

(0 Doe dem. Wood v. Monit, 13 East, 
337. See also Doe v. Pearmn, Ibid. 238, 
where in a similar case it appeared, on 
cross-ezaminationof the plaintiff's witness, 
that an agreement as to the time of quitting 
did exist, and the objection that the plain- 
tiff was boand to produce it was over- 
mled by Chambre, J. And where the 
plaintiff, in an action Ibr work and labour, 
proved his case, and the defendant's wit* 
ness proved that a written agreement 
had been entered into, but had not been 
stamped, and the defendant had gi?en no 
notice to produce it, it was held that the 
plaintiff's case was not disturbed. Stevent 
V. Pmney, 2 Moore, 430. Sed quare, the 
general rule seems to be, that where the 
subject-matter of proof is vouched by a 
written contract, it ought to be produced 
and proved by the party who relies on the 
contract Where Uie master had under- 
taken, by the bill of lading, to deliver 
ffoods to the consiffnee on payment of 
freight, it was held &bX he could not main- 
tain an action for not unloading in a rear 
sonable time, on an Implied contract 
Svafu V. Forster, 1 B. & Ad. 118. And 
see BmmcAer v.i9oo^, 4 Taunt 1. Where 
a party engaged to perform works under a 
written contract, during which a separate 
order was given for other work, it was held 
that it was not necessary to produce the 
written contract Reid v. Batte, 1 Mood. 
tc M. C. 413. In an action for not deliver- 
ing goods, manufactured by the defendant 
in pursuance of an order signed by the 
plaintiff only, the precise terms of the con- 
tract, and the defendant's accession to it, 
may be proved by parol. Ingram v. Xeo, 
2 Camp. C. 621. An assignee of a lease, 
who has been compelled by distress to pay 
rent due before, (he lessee having granted 
the lease by deed of assignment with the 
usual covenant for quiet enjoyment, cannot 



recover cm an implied promise. Baber v* 
HamU, P. & D. 360. 

(m) Powley v. Walker, 6 T. B. 878; 
Legh v. HewUi, 4 Bast, 164. So hi 
speieial actions against carriers, Ac where 
the alleged promise is a legal duty re- 
sulthig from the nature of the particular 
service which the defendant has under- 
taken to perform, it is sufficient to prove 
the original undertaking. NeUon 'v.AU 
dridge, 3 Starkie's C. 436. Although (as 
it seems) the dechiration allege a specific 
promise to do or omit that which in per- 
formance of the general duty, the de- 
fendant was bound to do or omit I^id. 
And therefore, where the dechiration 
alleged an undertaking on the part of an 
auctioneer, employed to sell goods, not to 
rescind a contract made by him as such 
auctioneer, &c., it was held, that general 
evidence of employment was sufficient 
Drid, In Witheringtmv. Auckland, C»S' 
Temp. Hardw. 309, Loid Hardwicke is 
reported to have said, that where the 
plaintiff does not declare on any general 
custom, but on a special contract, the 
contract must be proved as laid. ^^^ 
that case, where the plaintiff had declared 
on an undertaking to repair and enlaige 
a house, and particularly a certain '*^"^ 
the house called the club-room, it appeared 
that the defendant had been employed not 
by the phdntiff, but by an insurance com- 
pany, except as to some alterations in the 
dub-room, and thereibre the plaintiff was 
nonsuited. Promises hi kw exist in those 
cases only where there is no special agree- 
ment between the parties. Per Buller, •! ' 
Toumxint v. MarHvnant, 2 T. R 10^. An 
agreement to grant a lease contains no 
lm|died engagement for general ^^^'7^?' 
nor for delivery of an abstract of tne 
lessor's titie. GwUlim v. Stone, 9 Tw^*- 
433. Tenq»le v. Brown, 6 Taunt 60 J 
vide i^fra. Vendor and Vbndbb. a 
party agredng to let, virtually ""^^^^IJPi 
to give possession, and not a mere right oi 



assumpsit: 8PBCIAL. 69 

The plaintiff miut establish his right of action, and contract, in evidence, Variance, 
ma set forth in the declaration ; and a variance in any circumstance that is 
essential to the contract will be fatal (n). 

It is now perfectly well established, that a misjoinder of plaintiffs is a Parties, 
ground of nonsuit, as also is a joinder of too many defendants ; but that the 
omission of any party who jointly promised, must be pleaded in abatement (o). 
Where the action is brought by several, or against several, it must appear 
either that the promise was so expressly made, or that the plaintiffs in the 
one case, or the defendants in the other, were partners, and that the contract 
was made in behalf of all : this is a consequence which usually follows, from 
proof of the partnership itself (p^. In order to establish the fact of partner- 
ship, it is sufficient even for the plaintiffs to prove that they have carried 
on bustness as partners, without proving the partnership deeds. 

The allegation of a contract between the plaintiff and defendant, is proved 
by evidence of a contract made between their agents on their behalves (9). 

A contract alleged as between the plaintiff and defendant, is not proved 
by evidence of a contract between the plaintiff and a deceased partner with 
the defendant ; but it is sufficient to prove that the defendant and a deceased 
partner made the contract with the plaintiff (r). 

Where the plaintiffs sue in a particular capacity, as where they sue as 
assignees of a bankrupt upon promises to the bankrupt, they must, under 
the general issue, prove their title to sue as assignees («). 

The contract consists of the promise itself, and the consideration on pfomlte. 
which it is founded. A promise alleged absolutely is not supported by 
proof of a promise in the alternative (t). The allegation of a promise to 
deliver forty bags of wheat immediately, and the remainder of one hundred 
bags on the next market-day, is not supported by proof of a promise to 
deliver forty or fifty bags immediately, and the residue on the next market- 
day (u). So an absolute promise varies from a conditional promise (x). 



actioQ ; where therefore the premises were 
held over by a preceding ocenpler, it was 
held that the plaintiff was not driven to bis 
ejectment, hot might support an action for 
breach of agreement. Coe v. Clay, 5 Bing. 
440. 

(n) 1 T. R. 140 ; Gilb. Law. Bv. 8S9. 
Skute V. Hormey, Doog. 643. Brittow 
T. Wright^ Dong. 640. Grant v. Attle, 
Dong. 605 ; 3 T. R. 646. 

(o) R N. P. 163; 2 M. & S. 28; 2 Str. 

8*20. WUiford y. Wood, 1 Esp. 183. A 

joint contractor mnst be sued, although 

he be a certlilcated bankrupt. Bevil v. 

Wood, 2 M. & S. 28. 

(p) See tit. PARTETBaa. 

Iq) See ttt Aobkt. — PiRTKBas. — 
Bbt-off.— >VBNnoB Airn Vbitdbb. In 
general an action may be brought either 
in the name of the person with whom the 
contract was made, or in the name of the 
party really interested {Skinner v. StoekSf 
4 B. & A. 487); and therefore Joint- 
ownera of a vessel employed in the whale- 
fishery may sue a purchaser of whale-oil, 
although the contract of sale was made by 
one of the part-owners, and the purchaser 
did not know any other person in the 
transaction. ITie statutes of set-off do 
not prevent the action from being maln- 
in the names of aU the parties 



interested. Ibid. So in case of policies 
of insurance. Ibid, Bee Zloyd y. Arch^ 
ftow;e,3Taont.d24. Mawmany.QUleH. 
lb. 825. 

(r) Biehardi v. Heathery 1 B. & A. 29. 
fTyat ▼. Hare, Comb. 883. Smith y. 
Barrow, 2 T. R. 479. Slipper t. Stid- 
etone, 6 T. R. 498. Contrk, Spalding v. 
Mure, 6 T. R. 368. See Bice v. Shute, 
5 Burr. 2663. Whdpdal^s Gate, 6 Bep. 
109. 

(«) See tit Bankbuft. 

(0 8 East, 8; 2 B. & P. 116. In as- 
sumpsit on the warranty of a horse, the 
consideration stated for the warranty was, 
that the plaintiff would purchase tiie horse 
for 632., but the consideration as proved 
was, that tlie plaintiff would pay that sum, 
and if the horse was lucky, would give 
tlie defendant 5 1, more, or the buying of 
another horse ; held no variance, the con- 
ditional promise omitted in tiie declaration 
being too vague to be legally enfoicedy 
and not amounting in point of law to a 
promise. Outhing v. iMnn, 2 B. & Ad. 
232. 

(u) Penny v. Porter, 2 East, 2 ; 8 East, 
8. White V. Wileon, 2 B. & P. 116. Sk^ 
ham V. Sanders, 2 East, 4. 

(jt) Churchill v. WilHm, 1 T. R. 447. 
Layton ▼. Pearee, Doug. 14. 



60 



ASSUMPSIT : SPECIAL. 



Variaoce. 
Promise. 



Bubjeet- 
matter. 



The allegation of a promise to pay the amount of a promissory note on the 
death of «/. S., is not supported by proof of a promise to pay the amount on 
the death of J, S,, provided he left the party sufficient, or he was able to 
pay it (y). 

So if the plaintiff allege a promise by the defendant to sell his tallow to 
the plaintiff at four shillings per stone, and prove an agreement by the 
defendant to sell his tallow to the plaintiff at four shillings per stone, but 
that if the plaintiff gave more to any other person, he should giye the same 
to the defendant (z). 

An agreement to pay 20 /. if a given number should be drawn on a given 
day, varies from an agreement to deliver an undrawn ticket, or pay 20 L (a). 
One of two pleas of usury stated the forbearance to be until September Ist, 
1785 ; the second until January 1st, 1786- The evidence was an agreement 
of forbearance till either of those days ; and it was held that the evidence 
did not support either of the pleas (b). 

So a variance as to the suhject-^matter contracted for will be fatal. A 
declaration on a promise to deliver good merchantable wheat, is not sup- 
ported by evidence of an agiteement to deliver good second-sort of wheat (c). 
A contract to deliver 9oil or breeze, varies from a contract to deliver soU{d), 
A contract to carry goods, and deliver them to A, B, the plaintiff, varies 
from a contract to carry goods and deliver them to J. S, (e), A contract to 
deliver so many bushels of com varies from a contract to deliver so many 
bushels, according to a particular measure, which is greater than the 
Winchester measure, since by the bushel generally, the Winchester bushel 
must be understood {f). 

It is no variance that the defendant promised some other distinct matter 
in addition to that alleged, since the proof supports the declaration as far 
as is requisite (ff). It is true that the defendant did promise that which is 
alleged, although he further promised some other thing in addition ; there- 
fore a declaration on a contract to pay 52/. 10 5. for rum-money, is supported 
by proof of a note, by which the defendant undertook to pay the plaintiff 
52/. 10«., together with a pint of rum per day (A). So a promise to deliver 
a horse which should be worth 80 /., and be a young horse, is supported by 
proof of a promise to deliver a horse which should be worth 80/., and be a 
young horse, with a warranty that it had never been in harness (t). 

It is no variance that a part of the contract has not been alleged which 
merely regards some collateral engagement as to the subject-matter of the 
contract. The declaration alleged that the defendant bought of the plaintiff 
a quantity of East India rice, according to the conditions of sale of the 
East India Company, at a specified price, to be put up at the next Com- 
pany's sale, if required ; and it appeared in evidence, that, in addition to 
those conditions, the rice was to be sold per sample ; it was held that this 
was no variance, for it was not a description of the commodity, but a colla* 
teral engagement that it should be of a particular quality (k). 



(p) Boberti v. Peake, 1 Burr. 325. 
The Court were of this opinion, but the 
case was not decided upon this point. 

(z) CkurchiU v. WUMm, 1 T. B. 447. 

(a) JLayton ▼. Pearce, Doug. 14. 

(h) By Lord Kenyon, and Buller and 
Grose, Js., Tate v. Willing, 5 T. R, 531. 

(c) Ld. Ray. 735. 

(d) Cook V. Mumtotie, 1 N. R. 351. 

(e) Leety v. Goodson, 4 T. R. 687. 



(/) Hockin T. Cooke, 4 T. R. 314. See 
the Stat. 12 Hen. 7, c. 5 ; 22 Car. 2, c. 8. 

(g) CottereU v. Ct^, 4 Tannt. 285. 
Tempeit ▼. Bawling, 13 East, 630. For 
other instances, see tit. Vabiancb. 

(A) Baptiste v. Cobbold, 1 B. & P. 7. 

(i) Miles V. Sheward, 8 East, 7. 

(*) Parker v. Paltner, 4 B. & A. 887. 
The goods did not Ciirrespund with the 
samples, but after seeing the samples tlie 



assumpsit: 8PBCIAL. 



61 



In asrantpsit, the emmderaturti is of so entire a nature, that not only Considera- 
mist it he proved to the extent alleged, but an omission to allege any part tion. 
\a fatal ; for if any part be omitted, then the basis of the promise is misde- 
scribed. It is not true, as stated, that the defendant's promise was founded 
ttpon the eonsidraation alleged, when it was in fkct founded upon that and 
something else, which is also essential to its support (/ ). An averment that 
Btoek was to be transferred cm. request^ is not proved by evidence that it was 
to be transferred on a particular day (m). 

An allegation of an executory consideration is not proved by evidence of 
to executed consideration, though it is otherwise where an executed consi- 
deration is alleged, and the law implies the promise (n). An averment that 
a aote was given in repayment of monies paid, is not satisfied by proof of a 
aote given to secure money to be paid (o). So if the moral obligation on 
which the action is founded is misdescribed (p)* 

So where the declaration alleged an agreement to sell goods expected by 
the Fanny Almira, and the agreement proved was for the goods expected 
br the Fanny and Almira (q). So an agreement alleged to be for the deli- 
Teiy of all merchandisable skins, varies from the proof of a contract to deli- 
Ter all merchandisable calf-skins (r). 

In an action against a carrier, if the contract be aUeged to be to carry 
from A, to JB.y the termini are material, and must be proved as laid («). 



defeadaat had taken upon himself the dis- 
position of the goods, and had put them 
op to eale at a limited price, and bought 
them m again, and the Court held that aner 
this he eoald not repudiate the contract ; 
and the jury foond that be had not repu- 
diated the contract within a reasonable 
tone; therefore the sale was in effect com- 
plete. So where the plaintiff declared 
that the defendant had agreed to buy of the 
plaintiff a large quantity of head-matter 
aodfperm-oilyin the possession of the plain- 
tiff, and the contract proved was for the 
poichaae of all the head-matter and sperm- 
oil per the Wildman, it was held that 
there was no variance, for the allegations 
vere proved as fitf as they went, and the 
additional matter proved (that it was oil 
by the WQdman) was immaterial; it did 
sot qualify or annex any condition to what 
was stated. Wildman v. Glouqp, 1 B. &; 
A. 9. So if part of the contract has not 
been alleged, which merely regards the 
liquidation of damages aftor a right has 
teemed by a breach of the contract ; for it 
u matter of evidence only in reduction of 
damages. Cku-ke v. G'my, 6 Bast, 664. 
la an actioa against a cmrrier it is not 
aecessary to al&ge the limitation of his 
mponsibility by notice. Ibid, See 1 
Starkie'a C. 867. In an action of assump- 
sit for breach at an agreement for the 
aHignment of a lease, alleging that the 
definidant bad no title to ass^n, held that 
it vas no variance that the declaration did 
sot set out a danse iu the agreement re- 
stiaining the plaintiff from carrying on a 
certain trade in general terms, that not 
fonning any part of the consideration. 
i^AUm V. CkurehiU, 11 Mooie, 488. 



(I) Swallow y. Beaunumt^ 2 B. & A. 
265. 

(m) Bordenave ▼. Gregory, 5 East, 111. 

(n) 3 Lev. 08. Com. DIr. Action on 
THB Casb. — Assumpsit [F.] 6. 

(o) Atnory v. Merreyweather, S B. dt C. 
530. 

(p) The declaration alleged tliat the plain- 
tiff had supplied goods to JSlizabeth S. to 
the amount of 16 1», and tliat in considera- 
tion of the premises and of the said sum 
being unp^d, the said JS, S. afterwards 
promised to pay as soon as it was in her 
power; averment, that though it was after- 
wards in her power, she refused. The proof 
was, that the goods were supplied to her 
when she was a feme covert, living apart 
from her husband, and that she after his 
death promised to pay. Held, that as the 
price of the goods originally constituted a 
debt from the husband and not from the 
defendant, the ground of the supposed 
moral obligpation, on which the assumpsit 
proceeded, was not properly set out in the 
declaration, and therefore the plaintiff could 
not recover. SemblCf that a moval obli- 
gation is not in every case a sufficient con- 
sideration for a promise. lAtt^field^Exc' 
eutriXf v. 8hee, 2 B. dc Ad. 811 

(q) Boyd v. S\fkin, 2 Gamp. 326. 

(r) B. N. P. 146. 

(«) Tucker v. CrackLin, 2 Starkie's C. 
386. So where a sailor declared for 
wages, and the average price of a negro 
slave, due to him in consideration of ser- 
vice during a certain voyage, to wit, 
" A voyage from London to Uie Coast of 
Africa, and fh>m thence to the West In- 
dies/* and in the articles it was described 
as << A voyage from London to the Coast 



62 



ASSUMPSIT : SPECIAL. 



Variance.— 
Sabetance 
and legal 
effect 



Time, place, 

magnitade. 

See, 



It u in all cases sufficient to proye the promise alleged according to the 
mbsiamee and lepal effect of the allegation. Where the declaration alleged 
an agreement to purchase eight tons of hemp under a mdeHoety and the con- 
tract proved was for the purchase of about eight tons ; and it also appeared 
that after the contract the hemp had been weighed, and amounted to eight 
tons, it was held that the yariance was not material, for when the weight 
had been ascertained, the contract was in effect for eig^t tons (t), 

A yariance as to the time and place of the contract is not material, unless 
they be made part of the description of a written instrument (tf ). But where 
a particular sum, magnitude or quantity, is part of the contract, and the 
allegation is material, it must be proyed as laid, though it be averred under 
a videUcet. Thus, where the defendant averred that the plaintiff held certain 
lands of him as his tenant, at a certain rent, to wit, at llOiL rent, payable 
half-yearly ; upon non'tenet pleaded, it appeared that the land had been 
let by a written contract, at 16f. per acre, and that the whole amounted to 
111 21 ; the variance was held to be material (r). 



of Afiiea, from thence to the West Indies 
or America, and afterwards to London 
in Great Britain, or to some delivering 
port in Enrope," the variance was held 
to be &ta], notwithstanding the icUieet. 
WhUe V. Wilton, 2 B. & P. 116. So 
a declaration which alleges a retainer to 
cause the plaintiff's sUp to proceed to 
Gk^ttenbnrgh, in order tiiat she might 
afterwards proceed to Petershuri^, is not 
proved by evidence of a retainer to cause 
the ship to proceed to Gottenbnrg^, and 
afterwards, nnder certain conditions, to 
Petersburgh. Lopez v. 2>e Tattet, 1 B. & B. 
68S. In the case of J^W^A v. Gray,^T, R. 
061, n., in an action for not bnilding the 
plaintiff a booth at a horse-race to be ran 
on Bamet Common, in the comity of Mid* 
dlesez, it was proved that tiie whole of 
Bamet Common was in the coanty of 
Hertford. Bnt Lord Mansfield and the 
rest of the Court, on a motion for a new 
trial on the groond of variance, held that 
as it was perfeetiy immaterial whether 
Bamet Common was in Middlesex or not, 
those words might be rejected as surplus- 
age : tarn, qu, A warranty to buy ahorse 
at a certain price, teil, 961,5 «., is not sup- 
ported by evidence of a warranty upon the 
purchase of two horses Jointly for the sum 
of 60 guineas. Hart v. Dorif, N. P. Dee. 
1796. 

(0 Gladitme t. Neaie, IS East, 400. 
8o where the alleged promise was to de- 
liver stock on the 37th of February, but 
the contract proved was to deliver stock 
on the iettlinff day, whieh at the time was 
fixed for and understood by the parties to 
mean the 27th of February, it was held 
tint the proof was suflicient, the contract 
proved being in substance the same with 
that alleged. WUkt v. Oordon, S B. & A. 
385. So an allegation of a contract for 
the delivery of gum-senegal b supported 
by evidence of a contract for the delivery 
of rough gu m -s en eg a l, coupled with evi- 
dence that idl gom-eenegal on its arrival 



in this conntiy is called rough. Siher t. 
HeteUine, 1 Chltty's R. 30 ; vide tf|/ra, 
63, note (z). 

(u) Where the promise was laid on the 
84di of March, and to a plea of tender, 
the plaintiff replied a bill filed on the 12th 
of February ; upon the objection being 
taken, the Court held that the day was 
alleged merely for form, and that the 
plaintiff would not have been confined to 
it in evidence ; but, that if it had been the 
case of a note it would have been different, 
since then the day would have been an 
essential part of the agreement (Matthews 
V. Spieer, Str. 806); and temble, not even 
then, unless it had amounted to a misde- 
scription of tiie instrument, by alleging 
that it bore date on such a day. Wlere 
an action was brought on a note dated 
1704, and the replication alleged a bill 
filed in 1713, and that the cause of action 
arose within six years, it was held to be a 
departure, because the day was material, 
and judgment was arrested. Stqffbrd v. 
FoTTtTf cited Stra. 83. 

(x) Brown v. Sayer, 4 TwaA. 320. 
Mansfield, C. J. observed, that the record 
would certainly be evidence as to the 
amount of the rent between the same 
parties in another action. 9o where the 
]Hahitiff alleged tiiat he had agreed to sell, 
and that the defendant had a^«6d to buy, 
certafaa goods and merchandises, to wit, 
328 chests and 30 half-chests of oranges 
and lemons, at and for a certain price, to 
wit, the price of 623 f. 3«., and the con- 
tract proved was for 308 chests and 30 
half«^hests of China oranges, and 20 chests 
of lemons ; it was held to be a fktsl vari- 
ance. Criipm v. WiUiammmy 1 Moore, 
547. In an action for not reteining the 
pbintiff as a servant at a yearly salary, 
the declaration averred the agreement to 
be to pay 250 L per annum for the service ; 
it was held to be necessary to prove the 
specific sum as alleged, though it was laid 
under a videlicet, Preeton r. Bvteher, 



assumpsit: special* 



63 



And 6T6B where it is unneoeesary to allege the precise ram, qnantity or Variance. 
magnitade, yet if it be alleged without a videUcet^ precise proof will, it 
seemsy be necessary. Thus where the declaration in an action on a war- 
ranty of sonndness on the sale of sheep, alleged the consideration for the 
purchase to be 64/. llf. 6(f., and it turned out to be 64/. 10 f. 6d,^ the 
Tariance was held to be fatal (y). 

So where the consideration was alleged to be the forbearance of 211 6s, 
without ^videSeet^ and the proof was of a forbearance of 20/. 18 f., the 
Tsnance was held to be fatal (2). 

But where the declaration alleged that S, F,y the father of the defendant, 
was indebted to the plaintiff in a certain sum, to wit, the sum of 26/. 18 s. 6^., 
being the unpaid balance of a larger sum, and that in consideration of the 
plaintiff's forbearance to sue for the recovery of the balance of 26/. 18 f. 6e/., 
the defendant undertook to accept a bill for the amount of 26/. 13 f. 6e/., 
sad the balance really due was 26/., it was held to be no variance ; the 
payment of the balance being the consideration for the promise, the state- 
ment of a particular sum was unnecessary (a). 

It is essential that the agreement should be such as the law will sane- i^effslity. 
tion ; if it be illegal or contrary to justice and sound policy, no action can 
be founded upon it (6). 

Where the illegality is set forth upon the record, the objection may be 
taken either by demurrer or in arrest of judgment. Where it does not 
appear on the record, the defendant may show that the claim is in reality 
founded upon an illegal and noxious agreement. In some instances, how- 
ever, the plaintiff's claim is even fbunded upon the illegality of the agree- 
ment ; as, where he seeks to rescind an illegal contract, whilst it is executory, 
and recover the money which he has advanced under it (c). 



1 Starkie's C. 3. So, in general, where the 
Sam, quantity or magnitade, U niaterud 
and traveraablet the averment under a jci- 
Heet win not raider it immaterial, so as to 
protect from a trarerse, or to render pre- 
cise proof mmecessary. See the obser- 
vations of Lawrence, J. in Orimwood v. 
Barrett, 6 T. B. 463. Johnson v. PicUtt, 
which was an action on the Statute of 
Usory, cited Ibid. S. P. Pope v. Pottery 
4 T. R. 590, cited also by Lawrence, J. 
Also, Symmoffu ▼. iCnox, 3 T. B. 65; 
SWiILSaiind.207. 

(y) DuTMian v. Tatham, cited in Symf 
mont ▼. Knoxy 3 T. R. 67 ; cited by D^ior 
fkTyJ^iaAmJield v. Bate, 3 M. k S. 175. 

(2) An^ld r.Bate, 3 M. & S. 175. 
In the case of Laing v. Fidgeony 6 Taunt. 
108» it was held that an allegation of a 
contract to deliver saddles to tiie plaintiff 
at a reasonable price, was supported by 
proof of an agreement to deliver saddles 
at 24a. and 26«. ; and it seems, that if the 
declaratioa state the consideration to be 
certain reasonable reward, proof that a 
specific sum was agreed on, will not be 
material as to vat'lance. Bayley v. T^ecJieTy 
2N.R.458. 

(a) Bray v. Freemany 2 Moore, 1 14. 

{h) In conformity with the rule of civil 
Uw, ex turpi couth, rum eriiur actioy no 
sction can be maintained if any part of 



the entire consideration (Cro. J. 103), or 
any branch or part of the matters promised, 
be so. T. Jones, 24. 

(c) In general, where the demand arises 
out of any agreement which is illegal or 
immoral, or contrary to sound policy, the 
Courts will not lend their aid to enforce it. 
See Jordaine v. Lathbrooky 7 T. R. 601 ; 
Cockthott v. Bennett, 2 T. R. 763; and 
the caaes cited; tit Money had and 
RECSIVKD ; Money paid ; Aubert v. 
Maze, 2 B. & P. 371. Booth v. Hodgtony 
6T. R.405; MitcheU v. CoeMbumey2 H. 
B. 370. As where the consideration is a 
simoniacal presentation to a living (Cro. 
Car. 337. 353. 361), or the escape of a pri- 
soner in execution. Martin v. Blithman, 
Telv. 107, 1 Roll. R. 313. Where money 
has been advanced in furtherance of a joint 
illegal agreement, or received upon an exe* 
cuted illegal agreement {$ee the eatet tinder 
the cownt for money had and received). So 
where the consideration is any act incon- 
sistent with the party's duty as a sheriff 
or other public officer. Morrit v. Chap" 
many T. Jones. 24. Martin v. Blitfwiany 
Oil. 197. So if the consideration be the 
sale of spirituous liquors, unless to the 
amount of 20 #. at one time; 24 Q. 2, 
c. 40 ; and the statute applies though the 
spirits be sold in a state mixed with other 
ingredients ; as where grog is sold. Gil' 



04 



asshmprit: special. 



ConditiuD 
praoedent. 



Where the promise ig merely conditional, upon some precedent act to he 
performed by the plaintiff^ the promise must be so alleged in the declaration, 



pin T. KendUf DeTonsbire Lent Ass. 1809 ; 
Sel. N. p. 61. It has been held, that this 
statute does not extend to a secnrity 
given in payment for small quantities of 
spirituous Uquon. Spencer t. SmUhf 
S Camp. 9; eontrd Scott ir« OUfnare^ 
8 Taunt. 226. The statute is not con- 
fined to sales to the consumer. Benoffott y. 
Hutekiineonf 5 B. jc A. 241 ; oremUingi 
as it seemsy Jackaon y. AttrilL Peake's 
C. 40, So, in general, agreements against 
the principles of sound policy are yoid. 
As, tor instance, all agreements for the sale 
of public offices ; or that one person shall 
hold an office of trust for anoUier. Par" 
emu V. Tfionuon, 1 H. B. 322. Bladtfcrd 
et al. V. Preston, 8 T. R. 89. Layng y. 
Payne, Willcs, 571 ; 8 T. R. 19; 2 Wills. 
133. Garforth y^Fearon, 1 H. B. 327 ; 
and see the Stat. 12B.2,c.2; 6&6£d.6, 
c 16. So, all agreements are illegal and 
▼old which tend to the obstruction or hin- 
drance of public justice : as to prevent the 
due ezambiation of a bankrupt by the 
commissioners. Perot t. Wallace, 3 T. R. 
17. To omit to call the defendant up to 
receive judgment for a misdemeanor. Pod 
▼. Bmuifield, 1 Camp. C. 65. So^ all agree- 
ments in restraint of trade are illegal; 
but an agreement not to use a trade In 
a particular place is legaL Cro. J. 696. 
Bumn y. 67i/y, 4 East, 190. So is a 
general agreement among those who use 
a particular trade to establish a general 
lien. 'Hickman y. Shawcroee, 6 T. R. 
14. It Is also a general rule that fraud 
wHl yitiate a contract : for illustrations 
of this position, see tit. Bills op £x- 

CHAWOX. — FBAUD. — HONBT HAD AND 

aacBiTBD. 

Thus, any secret agreement or stipnlar 
tion, or compositions with Insolvents, by 
means of which one creditor sedis to 
obtain an un&ir advantage, are void. 
Codiahott v. Bennett, 2 T. R. 768. Xei- 
cetter v. Boee, 4 East, 372. Stoehe v. 
IfiMMer, 1 B. & P. 286. Thomoif, Court" 
nay, 1 B. & A. 1 ; or by which any nnihir 
advantage may be obtained over a third 
person {Jadmon v. Duchaire, 3 T. R. 
661. Pidcoek v. Buhop, 3 B. ft C. 606), 
is void. So also no action will lie in fti^ 
therance of any agreement whatsoever of 
a vicious or immoral tendency. As if lodg- 
ings be let for an illegal purpose. Criep v. 
CkurehUl, 1 B. & P. 340, 1, n. Girardy 
y. Bichardeon, lb. As prostitution, lb. 
Or where the plaintiff lodges unfortunate 
women and partakes of the profits. How- 
ard V. Hodgei, cor, Ld. Kenyon, C. J. 
Dec. 2, 1796. Nor for the price of im- 
moral, libellous, or indecent prints, per 
Lawrence, J., 4 Esp. C. 97. It seems, 
however, that though clothes or lodgings 
are supplied to a prostitute, the mere 
knowledge on the part of the plaintiff of 



her situation and circumstances wUl not 
exclude his right of action, unless they 
were directly supplied for that purpose ; 
or under an agreement or expectation, at 
least, that he should be paid out of the 
illegal profits. Bowry v. Bennett, 1 Camp. 
348. It was held that a washerwoman 
might recover for the washing of expensive 
clothes and dresses, though it was obvious 
that the plaintiff must have known that 
they were to be used for improper purposes. 
BuUer, J. observed, <' This nnfmrtunate 
woman must have dean linen, and it is 
impossible for the Court to take into consi- 
deration which of these articles were used 
for an improper purpose, and which were 
not" Uoyd v. Johnson, 1 B. & P. 341 ; 
and see tit Hon by had and bbcbivbd. 
Some of the decisions upon this head 
have conflicted, not so much in conse- 
quence of any doubt upon general prin- 
ciples, as of the difficulty in applying them. 
The general principle and foundation of 
them all Is this, that the law will not lend 
its aid in furtherance of an illegal or immo- 
ral transaction, or of any contract which is 
in general inconsistent with sound policy ; 
but that, CO the contrary, it will interfere 
for the purpose of preventing the execu- 
tion of an illegal agreement, and of far- 
thering the enactments of any prohibitory 
or remedial statnte. The application of 
this principle is strongly exemplified in 
the case of the action for money had and 
received, where the law prohibits or en- 
forces the recovery of the money, J est as 
the prohibition or enforcement will further 
the object of the legislature. If the 
money has been paid upon an illegal 
agreement which remains executory be- 
tween the parties, the law enforces the 
recovery of the money, because it thereby 
prevents a violation of the law by car- 
rying the illegal agreement into effect; it 
affords the party a loeus jMem^efi^ue, and 
enconniges him to recede from the illegal 
contract before it is too late. Where the 
money has been paid by one who was the 
olgect of the law's protection, and who 
is not equally culpable with the defendant 
who has received the money, the Courts 
allow it to be recovered, although the 
agreement has been carried into efftet, 
since the object of the statute was to pro- 
tect the plaintiff. But where both pan- 
ties are equally implicated in guilt, and 
the illegal contract has been curled into 
effect, the law denies its aid; for both 
parties are equally guilty, and equally 
undeserving of the aid of the law, and the 
best policy is to favour neither. (See 
Laoauaaade v. White, 7 T. R. 636, corirA', 
but this case has often been denieid.) The 
principal difficulty has orisen where a 
claim has been made by one partner in 
an illegal transaction against another. It 



assumpsit: special. 



05 



or the Tuianee would be fatal. Where the promise depends upon the per- Condition 

precedent. 



has been allowed on all hands, that where 
one partner has paid money for another 
in an illegal transaction, no action can be 
maintained, without evidence of an ex- 
press reqnest made by the defendant to 
the plaintiff to pay the money, since no 
implied assumpsit to pay the money can 
artoe out of an illegal transaction ; where 
SQcfa request has been made, many learned 
Jadges have been of opfaiion that the part- 
ner or agent in the illegal transaction who 
paid the money, might rely on the ex- 
press aasunpait, and that he had no more 
eoDoem with the illegal transaction itself 
in the course of which the money was 
paid, than if a mere stranger liad paid it 
at the defendant's request; and that there- 
fine where the illegal object was merely 
mabtm prohilritum^ the plaintiff was en- 
titled to reoo?er. In other and later in- 
atancea yery learned Judges have held, 
that a partner in such an illegal trans- 
action, who had paid money even at the 
ezpreas reqnest of his co-partner, could 
not recover, since his claim is mixed up 
and contaminated with the illegal agree- 
ment itsdf, and cannot be separated from 
it; that the dtotinction founded on an 
expnaa reqnest is untenable, because in 
every case of snch a partnership the jury 
would be warranted in finding an assent 
to the payment; and lastly, that the dis- 
tinetioa between tneUum prohilntmn and 
wtahim tis se is not a sound one. It is 
indeed a distinction very difficult to be 
snpported; every act which is immoral, 
mast, it should seem, be malum in «e, and 
it can seareely be denied that the wilful 
vidfaition of any positive law is not more 
or leas immonJ. A man may in ftct be 
mora guilty in a moral point of view in 
doing that which is usually termed a mere 
maktm prokibUum^ than in committing 
that which is malum in u. The destruo- 
tion of the current coin of the realm to the 
pr^fodiee of the whole community is merely 
mtium proktbUum, if there be any virtue 
in the dtotinetloo ; yet surely any act tend- 
ing to this prejudice is more mischievous 
and more immoral tiian the telling a lie, 
which is mahan in te. In reality, an act 
is iamoml, independently of any prohi- 
bilory law, in proportion to the evil which 
is tikdy to result fh>m it; in a moral 
point of view, every act from which evil 
is likely to flow is malvm in se, and the 
abstraet immorality does not depend on 
way positive prohibition. The broad, ge- 
neral, and iolelligible test for the deci- 
sion of these cases, seems to depend upon 
the question, whether the sustaining such 
actions would encourage and support ille- 
gal or immoral contracts, or whether the 
immorality be not so Ua oat of the ques- 
tion tlmt no rule cX principle of sound po- 
licy is violated in enforcinga contract which 
ia conscience ought to be performed 7 if 
■loney be advanoed in order to eiiectuate 

VOL. II. 



a criminal purpose, and be applied in fur- 
therance of that object, a Court, in lend- 
ing its aid to the recovery of that money, 
would be sanctioning and cnnsummating 
a contract founded in criminality; the 
affordmg legal protection to tlie lender 
would encourage the afibrding of aid and 
supplies for such purposes in future, and 
in consequence encourage the committing 
of the offence itself. 

A party who lends his aid to the com- 
mission of an offence is himself criminal 
in point of law as well as morals. If a 
man were to advance money to another to 
purchase a weapon for the committing of 
treason or murder, would he not at least 
be guilty of a misprision of treason or 
felony? In such cases, and where the 
money is so applied, the plaintiff's claim 
is tainted with criminality, and he seeks 
to recover through the medinm of an 
illegal transaction. It can make no dif- 
ference in principle whether the money was 
advanced by a partner, or by a stranger, 
provided the criminal object was known 
and intended, or whether the contract 
was express or implied. Upon the same 
principle of policy, the law, in many in- 
stances, permits money supplird for an 
illegal purpose to be recovered before the 
object has been executed; for it is the 
policy of the law to assist and encourage 
parties in receding from illegal projects. 
Where money has been paid in execution 
of an illegal contract to the assent, whose 
principal is a particeps criminitf the prin- 
cipal, it seems, ought to recover it ; the 
party who paid it to the agent is not en- 
titled to it, since it has been paid in con- 
summation of an executed illegal contract, 
and it would be against conscience that 
the agent should be allowed to retiiin it; it 
is the money of the principal, anil tiic case 
seems to be the same in effect as if the 
principal had received the money with 
his own hands, and then delivered it to 
the agent. He does not claim as from the 
agent, through the medium of an iiles^ul 
contract : his title arises immediately from 
the act of the agent iu receiving the money 
to his use ; and therefore the case differs 
widely from that of money knowini;Iy lent 
for an unlawful purpose, where the illegal 
object is immediately connected with the 
lending, which is the consideration for the 
promise. 

The case of Cannon v. Sryce, 3 B. & A. 
170, seems to remove the doubts formerly 
entertained upon questions of this nature, 
vid. tf^fra, 77-93. 

For further illustration of the principles 
above adverted to, it may be proper to 
refer to the following decisions. Where the 
plaintiff received into his employment the 
defendant, a person of competent but in- 
ferior skill in the plaintiff's profession, 
upon a stipulation that he might discharge 
him upon three months' notice, and the 

F 



M 



ASSUMPSIT: SPfiOtAL. 



Conditkm formanoe of a conditioo puscedent, 

defendant covenanted In ease o^ dismisBal 
not to practise within 100 miles, it was 
held ^t tlie contract was one which 
contained a restraint on tlie defendant 
In respect of his trade ftir larger than 
was necessary for the (frotection of the 
plaintiff in the enjoyment of his, and conld 
not therefore form the subject of an action. 
Homer ▼. Qtooh^ 7 Bing. 7S6. So where 
the consideration of an agreement, by 
which a party nndertook to work exdn- 
•Ively for another, was wholly without 
adequate consideration, and placed him en* 
tirely at the mercy of the latter; and a 
promissory note, given by the former for 
breaches of the agreement on his part, 
eaonot be set off against his claim for work 
performed by him before he became bank* 
lupt, in an action by his assignees, such 
note being void for want of consideration. 
Young t. TimmbiUj 1 Cr. k, J. 330, and 
1 Tyrw. 896. Where three persons carry- 
ing on a similar trade, and vendiog their 
raaanfoctnres about the country, entered 
into an agreement for their mutual benefit, 
to confine themsdres to certain districts, 
and that neither should purchase certain 
articles at or beyond a certain price, and 
that if any other persons should set up the 
tame trade, and oppose them, tliat then 
they would meet together, and enter into 
such mutual agreement as should be bene- 
ficial to their mutual interests, it being 
their intention not to do any acts prejudi> 
cial, but to aid and assist each other in 
the said trade to the utmost of their power ; 
hdd tliat such agreement not operating as 
a general restraint of trade, was valid, and 
that there was on the face of it a sufflcieat 
consideration for the partial restraint it 
contemplated. Wiekent y. JBvans, 3 Y. 
Ac J. 818 ; andsee DovMSv. Mont, 6 East, 
190. An agreement, reciting that the 
plaintiff was possessed of the means of fur- 
nishing evidence enabling the defendant to 
recover certain sums, of which it was 
alleged that he had been defrauded, and 
stipulating that he should use his utmost 
means and influence for procuring evidence 
to substantiate the defendant's claims, and 
that he should receive a certain proportion 
of the amount recovered by hJs means; 
was held to be illegal. Stanley v. Jonei, 
7 Bing. 309, and 5 M. & P. 193. An 
agreement between two sons to convey and 
assign, the one to the other, a moiety of all 
such real or personal estate as they should 
respectively derive under their Cither's will, 
•0 that each should take an equal moiety, 
and that in such division all sums, Slc. re* 
ceived in his life-time as advanoement 
should be taken into account, was held to be 
valid. Wethered v. Weiheridf 9 Sim. 183. 
So was an agreement between two parties 
having expectancies from a third party, 
to divide equally what he might leave 
them respectively. Hanoood v. Tookg, 
9 Sim. 199. Where the pkdntiff had pur- 



the plaintiff eitlier aUagea perlb 



chased the certificates or obligations of a 
revolted colony of a foreign State, assum- 
ing to be an independent State, but not 
recognised by tlie Government of this 
country, the defendants representing that 
tliey hiftd entered into a contract for the 
loan, and expected it would bear a pre- 
mium; hdd, that independently of any 
question of fiaud, the purchase being 
founded on a contract whichj the Court 
upon grounds of public policy could not 
sanction, it could not relieve the plaintiff 
as to the instalments he had paid ; held 
also, that as it did not appear that the 
payments of the interest on such instru- 
ments were to be paid in this country, the 
stipulation for six per cent interest was 
not usurious. Thomp$on v. Pawleg, 9 Sim< 
195. A publican cannot recover for beer, 
dec. furnished to third persons, by order of 
a party who has been allowed to beoomt 
previously intoxicated ; the permitting per» 
sons to become so in his house bdng illegal, 
he cannot take advantage of an offence 
which he has been instrumental to. Bran^ 
don y.OldyS CAT. 440. Where, pend* 
ing an action, a {larty undertook to pay the 
plaintiff's attorney his costs, in considera- 
tion of the plaintiff *s, with his attorney's 
consent, giving an aulJiority to the defend* 
ant to pay over the debt sued for to a cre- 
ditor of the plaintiff; It was held, that the 
action could not be supported. Tofflor v. 
WaUon,41i.&'Ry.fiS». Where the idain- 
tiff, a cmiitor, having seized goods in exe* 
cation, afterwards at a meeting of crediton 
declared he would not come into a compo- 
sition nor withdraw the execution, without 
security for a certain part of his debt, to 
wliich a third party consented, and gaye a 
guarantee, and he thereupon signed the 
deed; held that such security wttBfiuudu^ 
lent as against the rest of the creditors, 
and void. Colman v. Waller^ 3 Y. & J. 
912. Upon a previous agreement with a 
third person for a benefit by supplying coala^ 
to a stated amount, If the plaintiff would 
sign an agreement for a composition with 
his debtor for 10 $. in the pound, and for 
which the defendant afterwards signed a 
joint and several note, although the eoala 
were supplied, and no other (ueditor wat 
acquainted with or infinenced by the trans* 
action. It was held that the plaintiff could 
not recover on the note. Knight v. Hunt^ 
5 Bing. 439. Where the Insolvent havmg 
been oiqposed by a creditor was remanded 
to a ftituie day, and in the meantime his 
attorney undertook, in consideration id the 
creditor's withdrawing his opposition, thai 
he should be appointed sole assignee, and 
reoeive a certain sum within a &ed thna, 
held that such agreement being contrary to 
the policy of the Insolvent Acts, no action 
eould be oiaintalned thereon. Murrag ▼. 
Beetety 8 B. A: C. 491. Where a party 
elected died before taklM^ his Bc«ty heU 
that the vepraMatatlm liavlng baooaM 



ASSUMPSIT: SPECIAL. 



67 



«iiee, or aileges some matter in excuse for the non-performance (</) ; and Condltioa 
the proof Taries accordingly. And where the agreement contains mutual P"^^®'''' 
conditions or covenants to be performed at the same time, the plaintiff 
must either aver performance, or a readiness to perform his part of the 
contract (e). 



▼aeaat on his death, the plaintiff, a pub- 
lican, could not recover for beer, &c. sup- 
plied to Totm on a cebtrss by a third 
party on behalf of a candidate at the fol- 
lowing election, although the latter neither 
ordered nor was shown to have knowledg^e 
of the treating; held also that the Treat- 
faig Act was not confined merely to sac- 
eessfnl candidates. Ward v. Nanney, 

5 C. & P. 999. Where a contract for the 
porcbaBe of a heifer was nude on a Sun- 
day, but the defbodant retained possession, 
sod subsequently promised payment, held 
that the plafaitUf was entitled to recover 
fer the value on a quantum meruUy though 
not fiir the price agreed on upon the bar- 
gam completed on Sonday. WiHiajru v. 
Paul, 6 Bhig. 653. Where the lessee of 
premises covenanted tiiat he would in- 
demnify the parish against all coats what- 
soever, for or by reason of his taking an 
apprentice or servant, who should thereby 
gsln a settlement, or become chargeable to 
file parish ; the agreement was held on 
demurrer to be valid. Waiih v. Fuuell^ 

6 Bing. 103. The forbearing to petition 
against the return of a sitting Member on 
the ground of bri!)ery, is an illegal consi- 
deration for a promise to pay money. Cop^ 
potke V. Bower^ 4 M. & W. 361. Tlie 
agreement, although unstamped, was ad- 
mitted in evidence. In assompsit on an 
agreement to pay a sum in considera- 
tbn of the plaintiff using his influence, 
and seeurlng an appointment to the de- 
feodant ; plea {jaiteralia) that the plaintiff 
had procure the appointment through 
frsudnlent representation; it was held that 
the issue was whether tiie representation 
was iklse to tiie knowledge of the plaintiff 
St the time. Jfeely v. Lockcy 8 C. & P. 



(<f) UgMre^% Case, 7 Rep. 10, cr. 
1 T. R. 638. Dong. 690. Com. Dig. 
Plbadbb, c. 51. Chitty on Pleading, 309. 
An allegation of the actual performance 
of a condition precedent, or of readiness 
to p e r form a condition connusant, is not 
•athfied by evidence of a dl^harge, or 
excuse for non-perfbnnance by the act or 
omisrion of the defendant. lb. And see 
the observations of the Court in Heard v. 
Wadhamj 1 East, 619. Jones y, Berkeley y 
Bong. 659. Kmfftton v. Preston, cited lb. 
Jtawson V. Johnson^ 1 East, 803. P. C. 
Berry v. Deighton, K. B. Mich. 1887. 
Where, in an action on a breach of a con- 
tract to convey on board of plaintiff*s ship, 
a boat not exceeding certain dimensions, 
wUeh when tendered proved to be a diecked 
boat wftUn tiwl aize, wMefa the pUdaftiff 



veihsed to receive unless the defendant 
would consent to remove the deck, as ob- 
stracting the navigation of the ship; held 
that evidence of its being always usual to 
take off the deck of such boats in stowing 
them, was properly admitted, and that the 
plaintiff having declined to permit it, could 
not recover for breach of the contract. 
Haynes v. Mottidayy 7 Bhig. 587. 

(e) See 1 Bast, 203. The question, what 
will constitute a condition precedent, is 
purely a consideration of law, arising 
upon the inspection and construction of 
the agreement itself. (See 1 Will. Saund. 
320, a.) Since, however, the omission 
to aver the peHbrmance of a condition 
precedent is a ground of nonsuit at the 
trial, when it appears that the defendant 
has not undertaken or covenanted abso* 
lately, but only upon the performance of 
some condition by the plaintiff, the per- 
formance of which he has not alleged, it 
may be proper to observe, in the first place, 
that covenants and agreements are to be 
construed according to the intention and 
meaning of the parties, to be collected 
from the whole instrument Porter v. 
Shephardf 6 T. R 668. Hothatn v. EaH 
India Company, 1 T. R. 645. CampMl 
V. JoneSy 6 T. R. 571. Morton v. Ijunby 
7 T. R. ISO. And see above, note (d). 

If a day be appointed for the payment 
of money, or part of it, or far doing any 
other act, and the day is to happen, or 
may happen before the thing which is the 
eonsideration for the payment of the money, 
or the doing of any other thing, an action 
may be brought for the breach before pex^ 
ibrmance, since it appears that the party 
relied upon his remedy, and did not intend 
to make the performance a condition pre- 
cedent. 1 Will. Saund. 320, a. And 
so it is where no time is fixed for the per* 
formanee of that which is the considerap 
tion for the payment of the money or other 
act. Ibid. ; and see Campbell v. Jones, 
6 T. R. 672 ; Thorpe v. Thorpe, 1 Salk. 
171; 1 Ld. Raym. 665; 1 Lut 250; 
12 Mod. 461 ; 1 Vent. 177 ; Peters v. 
Opie, 1 Salk. 113; 2 H. B. 389. But 
where the consideration is to preeede the 
act covenanted for, it is a condition pre- 
cedent. Ibid. ; and Boon v. Byre, 1 H. B. 
273; 1 Salk. 171; 1 Ld. Raym. 066; 
12 Mod. 462 ; 1 Lntw. 261 ; Dyer, 76, a. 
Where a covenant goes to part only of the 
consideration on both sides, and a breach 
of such covenant may be paid for in da^^ 
mages, it is an independent eoveaant, and 
an action may be maintained for a breach 
of suefa covenant, without averring per- 
formance. Boon V. JByrOf 1 B* -B* 273, 

f2 



cs 



assumpsit: special. 



Cmidttion To satisfy an aT«nneiit that the plaintiff was ready and willing-to transfeiv 

pMoedent. ^^ requested the defendant to aecept stock, which he refused, the plaintiff 

must prove an actual tender and refusal ; or that he waited at the Bank on 

the day appointed for the transfer, until the close of the transfer books, the 

latest moment when the transfer could have been effected (f). 

Where the plaintiff alleged, in an action for not completing the purchase 
of certain shares, that he was lawfully entitled to so many shares, and it ap- 
peared from the act of parliament which created the shares that no legal 



B. a. Ctunpbell Y, Jiffietf 6 T. R. 570; 
I Will. Saand. 310, b. Bat where the 
mutual covenants go to the whole of the 
consideration on both sides, they are mu- 
tual conditions, and performance must be 
averred. Duke qf St, Albans v. Shore, 
1 H. B. 270. Large v. Chethire, 1 Vent. 
147. Where the two acts are to be done 
at the iome time, they are also mutual con- 
ditions ; as, where A. covenants to convey 
an estate to jB. on the day specified, and 
in consideration thereof B» covenants to 
pay A, a sum of money on the same day. 
1 Salk. 112, 113. 171. Thorpe v. Thorpe, 
S Salk. 623 ; 1 Will. Saund. 320, c. and 
the cases there cited. Where upon an 
arrangement of cross actions it was 
agreed, inter alia, that the defendant, the 
attorney of one party, should give his note 

for 1, as a collateral security for the 

■mount to be paid to the other, and that 
the latter should give up all the effects 
which he had of the former into the de> 
fendant's hands; which note was given 
immediately after the signing of the agree- 
ment; it was held that the delivery of the 
goods was not a condition precedent to the 
right to recover on the note. Irving v. 
JKing, 4 C. & P. 409. Where upon a build- 
ing contract, the defendant covenanted to 
pay a further sum, provided the pavement 
were laid and other work completed before 
a certain day, hnld that the non-compfetion 
of the pavement by that time, although 
occasioned by bad weather, defeated the 
right to such further sum. Maryon v. 
Carter, 4 C. & P. 205. By an agree- 
ment with a foreign mining company the 
plaintiff was engaged as superintendant 
for three years, at a salary increasing 
yearly, with a proviso for a twelvemonth's 
notice of dismissal, or a twelvemonth's 
salary, and the reasonable expenses of his 
return ; and if he stayed the three years, 
be should also be entitled to all reasonable 
expenses of the return to his &mily ; the 
defendant dismissed him before the expi- 
ration of the second year, without notice, 
or paying the year*s salary or expenses t 
held that he could only recover such da- 
mages as be would have received if notice 
had been given, and not fur the salary 
wMch would subsequeotly have accrued, 
or the expenses of the return to his family. 
Freneh v. Broohee, 6 Bing. 354. Where 
the defendant subscribed and paid a deposit 
Ibr s ^ New Hiatory of SaoUand, by," ki^ 



and the work when delivered appeared to 
be only a translation of Buchanan's work, 
wUh notes and continuation by J. H., 
which the defendant had insisted upon the 
plaintiff's taking back ; held that the latter 
could not recover the price. Paton v. 
Jhmean, 3 C. & P. 336. The plaintiff 
consented to a composition with other 
creditors, but the trustees afterwards re- 
fused to allow him to sig^n the deed, 
alleging that his claim was usurious ; held 
that he wa» remitted to his original legal 
rights. Oarrard v. Woolner, 4 C. & P. 
47 1 . B, agreed to supply W. with straw, 
to be delivered at W.'s premises at the 
rate of three loads in a fortnight, during a 
specified time, and W, agreed ** to pay 17. 
^ «. per load for each load of straw so de- 
livered on his premises " during the above 
period. After the straw had been supplied 
for some time, W. refused to pay for the 
last load delivered, and insisted on always 
keeping one load in arrear ; held, that ac- 
cording to the true effect of the agreement,, 
each load was to be paid for on delivery ; 
and that on W.'s refiwal to pay for them, 
B. was not bonnd to send any more. 
Withers v. Beynoldi, 2 B. & Ad. 882, 
Upop a stipulation in a charter-party, that 
if the ship did not arrive at the port of 

loading on or before , unless prevented 

by stress of weather or other unavoidable 
impediment, the freighter should not be 
obliged to ship a cargo; held, that the 
captain was only bound to use ordinary 
diligence, and that if the arrival of the 
vessel had been delayed by impediments 
not to be overcome without unusual exer- 
tion, the defendant waa liable for a breach 
of the covenant to ship a caigo. Granger 
V. Dent, 1 Mood, dc M. C. 475. Where 
the terms of the contract of the charter- 
party (dated June 30) were, that the vessel 
should be ready ^ forthwith," and not 
being so on the 4th of July, tiie plaintiA 
renounced the contract, and sued the de- 
fendants for the default ; held, that having 
regard to the state of the vessel, wldch 
was known to both parties, the question 
was, whether the vessel could, with reason- 
able and proper diligence, have been got 
ready; and if the Jury thought that 11 
could not have been reasonably expected 
to be so, that the defendants were en- 
titled to the verdict Simpeon v. Hendm^ 
eeny 1 Mood, k, M. C. 300. 
(/} Berdmwmi, Qregory^b Bast, 107* 



lArsSUMMlT : GBNERAr. 



iP^ 



actual 
request. 



title had been Tested in him, it was held to be a ground of nonfluit(^). Where 
a mere duty is to be paid on request, the bringing of the action is a sufficient 
request ; but if the defendant promise to pay a collateral sum on request, 
an actual request must be alleged and proved. As where the defendant 
undertakes to pay lOL on request if he does not perform an award (A). 

The genend count of indebitatus xusumpnt is founded npon an implied pro- Indebitatu 
miic to pay a certain debt or duty, upon a consideration, executed at the ■••'*™P«it 
instance and request of the defendant, or upon a legal obligation arising from 
the particulscr circumstances of the case(£). The plaintiff must prove, Ist, 
a consideralion executed; 2dly, at the request of the defendant. The Proof of 
necessity of proving a request, or that which is equivalent to it, or is evidence 
from which a request may be inferred, follows from the principle of law, 
thatnoone can constitute another person hisdebtor without his permision ; and 
consequently it is not sufficient that the plaintiff should have rendered ser- 
vices to the defendant(Jfc), without also showing that the defendant assented 
to the services, and expressly or impliedly agreed to remunerate the plaintiff 
lor them. In order to show this it is essential, in every declaration in' 
assumpsit, which is founded upon a past consideration, to allege it to have 
been done at the special instance and request of the defendant (/) ; and, in 
evidence, it is necessary in some instances to prove an express request by 
the defendant, and in others, to prove cii'cumstances from which a previous 
request may be inferred (m)^ther in fact or in law. 

If the service be not for the benefit of the defendant himself, evidence of 
an express previous request is essential, and a subsequent promise is not 
sufficient. A's servant being arrested, JB., the friend of A., bailed him, and 
it. afterwards undertook to indemnify JB.; and it was held that this promise 
was not binding, because the consideration was past ; but that it would 
have been otherwise had A, previously requested JB. to bail his servant (n). 

But if the 'defendant voluntarily derive benefit from the service, that will Request 
be evidence of a previous request: as, where the plaintiff has paid a sum of when pre- 
money for the defendant, or bought goods for him without his knowledge 
4>r consent, and he afterwards assents to the payment or uses the goods (o). 

Where the defendant was under a legal obligation to procure the service to From legal 
be done, a subsequent promise to pay will be evidence of a previous request, obligation. 
And therefore, where a pauper was suddenly taken ill, and an apothecary 
attended her without the previous request of the overseers, and cured her, 
and afterwards the overseers promised payment, it was holden to be bind- 



{g) Latham v. Barber, 6 T. R. 67. 

{h) B. ir. P. 151 ; 1 Saund. 33; 1 Str. 
68. 

(0 See B. N. P. 129 ; Bell ▼. Burrouys, 
5 Qeo. 3, cited Ibid. Indebitatus assitmpsU 
wfll not lie in any case where debt would 
Dot lie; Ifttrcftf Ca«e^Salk.2d. But it will 
not Ue in all eases where debt would lie ; 
it is not maintainable on a specialty. But 
it win lie oo a foreign judgment Plaistow 
Van-'Uxtaif Doug. 5, n, and on an Irish 
jodgoient. Vattghan y, Blunkett, STannt. 
85,n. Harris Y. Saunders, A B, SlC.au. 
CroM^ord V. Whittal, Doug. 4, n. 

(k) See Birks v. Trippett, Saund., as 
to tie distinction between a duty and a 
roAitcral undertaking. Back v. Oicen, 
^T. B. 



(I) Lamplugh v, Braithvaite, 1 RolL 
Ab. 11. Bosden v. Thin, Cro. J. 18 ; 1 
Will. Saund. 264. n.(l); Dyer,272; Hoh. 
. 106. Hayes v. Warren, Str. 033. 

(m) A. requests B, to endeavour to 
procure a panlon for ^1. ; il^ after endea- 
vour made, A. in consideration thereof, 
promises to pay B, a certain sum, it b 
a good consideration. 1 Roll. Ab. 11, 
pi. 6. 

(ft) Dyer, 272, a-, 1 Roil. Ab. 11, 
pi. 2) 3. 

(o) Assumpsit lias by the owner of a 
market for stallage, without showing any 
contract with the occupier. Mayor, ^ 
qf Newport ▼. Saundert, 3 B. & Ad. 411. 

F 3 



70 



ASSUMPSIT : QSNERAL. 



Request — i^gip)- But a mere moral obligation is insufficient Irithont a previtnti 
Lc^al obli- request (q), or a subsequent express promise (r), in respect of a debt due in 
point of natural justice, but whicb, for technical reasons cannot otherwise be 
enforced. A master is not liable on an implied amttmprii to pay for medicid 
attendance on his servant («). And the overseers of a parish to which a pau- 
per belongs are not liable, without an express promise, to reimburse the 
overseers of another parish, for medicines supplied to the pauper during his 
casual residence there (0> Where the obligation is a legal one, the parties 
who ought to discharge it are liable, though there be no previous request or 
subsequent promise. Thus the overseers of a parish are liable, not only in 
respect of necessary medical attendance on a casual pauper accidentally dis- 
abled within the parish, but even for such attendance in the pauper's own 
parish, to which they have improperly removed the pauper (u). 



(p) Watton V. Turner, B. N. P. 129. 
147. 381. See also Wing v. MUl^ 1 B. & A. 
106. And where a casual pauper acci- 
deotally fractured his leg, aod was at* 
tended by a nurgeon who attended the 
parish poor, with the knowledge of the 
overseer of the poor, who visited the 
panper there, it was held that a request 
by the overseer might be presumed. 
Lamb v. Bunee, 4 H. & S. 275. An acci- 
dent having happened to one of the de- 
fendant's children, who were residing at a 
distant place under the care of servaDts, 
the latter called in the plaintiff, an apothe- 
cary, to attend ; held, that the fiither was 
liable, although he never knew of the 
plaintiff's attendance, and the accident 
was owing to the servants* negligence; 
held also, that he was liable for attendance 
on one of his servants, in illness brought 
on in consequence of the service, but not 
for illness occasioned by the servant's own 
imprudence, unless the master had been 
informed of it, and acquiesced. Cooper 
V. Phillipt, 4 C. & p. 681. An executor 
having assets is liable, upon an implied 
•contract, to pay suitable funeral expenses, 
although ordered by a third party, it not 
appearing that they were furnished upon 
liis credit. Rogers v. Price, 3 Y. & J.28. 
And see Tugtoell v. Hayman, 3 Camp. C. 
298. 

(q) See the note 3 B. & P. 249, and the 
cases there collected. 

(r) A feme covert having an estate 
settled to her separate use, gave a bond 
for repayment, by her executors, of money 
advanced at her request, on security of 
that bond, to her son-in*law; after her 
husband's death, she wrote, promising that 
her executors should settle the bond ; and 
it was held that the executors wore bound. 
Lee V. Muggeridge, 5 Taunt. 36. This, 
with jnany other cases, falls within a very 
general principle, that wherever a debt in 
.point of natural justice is due, but cannot 
oe legally claimed by reason of the inter- 
vention of some positive law, the consi- 
deration will support an express promise : 
for a party may always waive a provision 
for his own benefit. The principle, there* 



fore, applies not only in the above ease, 
where the legal cUdm was impeded by 
coverture, but also where it is prevented 
by the Statute of Usury ( Barnea v. Heady f 
2 Taunt 184) ; or of Limitations <i^e2i)!^ 
V. Hastingt, Ld. Raym. 589; see tit* 
Limitations) ; or by the defendant's in- 
£uicy (Southeritm v. WMtloek, 2 Str. 690, 
j* infra, tit Ivfanct) ; or by an insolvent 
act (Af ifcMoto V. St, George, 4Taunt. 613); 
or by the Btatnte of Bankruptcy (Fleming 
V. Haynei, 1 Stacride's C. 870 ; Unbuy v . 
Weightnum, 5 Esp. C. 196) ; or where the 
holder of a bill of exchange omits to give 
due notice of the dishonour to the drawee. 
{Lundie v. Roherteen, 7 Bast, 281. Roper 
V. Alder, 6 East, 10, n.) In such cases, 
however, it is a general essential that the 
promise should be distinct and unequivocal. 
Per Lord Ellenborough, in Flenring v. 
Haynes, 1 Starkie's C. 370. A promise 
made to pay an old debt discharged by 
an insolvent act, by instalments, without 
specifying the amount or time of payment, 
was held to be insufficient. Mucklow v. 
St. George, 4 Taunt. 613. And if the 
subsequent promise be conditional. It is 
incumbent on the plaintiff to show per- 
formance. JBetford v. Saunders, 2 H. R. 
1 16. By the stat 6 Geo. 4, c. 16, s. 131 , a 
certificated bankrupt is j3ot liable on a sub* 
sequent promise, unless it be in writing. 
A subsequent promise will not revive a void 
security. Cockskott v. Bennett, 2 T. R. 
763. 

(i) Wennall v. Adney^ 3 B. & P. 247. 
But see Newby v. Wiltshire, 2 Esp. C. 
739 ; Searman v. Castel, I Esp. €. 270. 

(0 In Atkins v. Banwell, 1 East, 505, 
a pauper residing in the jMuish A. was 
relieved there, and supplied with medi- 
cines by the parish officers, and it was 
held that the officers of the parish B., to 
which the pauper belonged, were not 
bound to repay the money so expended. 
And see Tornlinson v. Bentall, 5 B. & C 
738. Gent v. Tompkins, 5 B. & C. 746. 

(u) Tornlinson v. Bentall, 5 B. &€. 788. 
Note, that after the removal, one of the 
defendants sent for the surgeon, who re- 
sided in the pauper's own parish, in order 



assumpsit: gbnebal. 



71 



Where goods sre supplied to a feme covert living apart from her husband, Request- 
without any fault of her own, suitable to her rank in life(x) ; or where the ^^^ <>^^- 
plaintiff, to save himself^ pays money for the defendant, which the latter was ^ 
in law bound to pay (y), ^<> evidence of a previous request or subsequent pro- 
mise in necessary {z)* So in many instances, where the defendant has com- 
mitted a tart with respect to the property of the plaintiff, the latter may 
wahe the tortj and bring his action for goods sold and delivered, or for use 
and occupation, according to the circumstances of the case (a). In thecye 
easee no evidence, either of a previous request or subsequent promise, is 
accessary ; for as soon as, in point of law, a debt certain is due from the 
defendant to the plaintiff, the law infers a promise on his part to pay it } 
whereas^ in the other cases, either a previous request, or subsequent pro- 
aiise, ot some evidence of assent, is essential to constitute a perfect legal 
daty. 

When the terms of a special agreement have been performed so as to leave Proof by 
a more simple debt or duty between the parties, the plaintiff may give the !^!^ ^ ^ 
circumstances in evidencOi and recover imder a general count of mdebUatus 
OMma^mHb). But in such ease if it appear that the work has been done 
under a written agreement, the plaintiff must produce and prove it, or he 
will be nonsuited ; so if he produce it and it cannot be received in evidence 
for want of a proper stamp (c). 

If goods are to be paid for at a specified time, an indebUatut amunnpdt will 
lie when the time has expired (cQ. If goods are to be paid for by a bill at 
two months, although the acceptance of the bill be refused, the action of 
wn dMU U uB as$umprit cannot be brought until the expiration of the time of 
credit, and then the action will lie (/}. If a bill be given in payment for 
goods, and there be no agreement as to time, and the bill turn out to be 
worthless, an action may be commenced immediately {g). And it is suf* 



that he might attend the pauper; bat the 
Court aeem to have decided the case 
vhtrily on the ground of legal obligation. 
See J2. Y. Iiihab. qf St. JameMy Bury St. 
JSdmundSj 10 East, 25. In the case of 
Gent V. Tompkins, 5 B. & C. 746, the 
paaper bdng settled in N., met with an 
aeddent in W., and was attended by a 
surgeon of IT. : the defendant, who was 
the overseer of 3r., alter a fortnight's at> 
tendance, called and desired of the surgeon 
(the plaintiff; that the panper might con- 
tome to receive every attention, saying 
tibat he (the defendant) would see the 
plaintiff paid. Hie Coart were of opinion 
that the overseers of W., where the pauper 
met with the accident, and not those of 
j^., to which tiie pauper belonged, were 
liable in the flnt instance, but expressed 
a doubt whether the defendant might not 
be liaUe if, in consequence of his promise, 
tile plaintiff continued to attend, and 
thought that this point ought to have been 
left to the Jury; and on that ground 
graatad a new trial 

(«) JeiMnt V. Tucker, 1 H. B. 90. So 
Ibr the Amend expenses of the wife. Ibid, 
teas, wh ei e she leaves the house of her 
hasbaad wHiwut necessity. Horwood ▼. 

(y) Vide tf|/r«, M. 



(z) Q^, Whether in the former case 
the wife, and in the latter the plaintiff, 
may not be considered to be the agents 
of the defendant ? 

(a) Vide infra, 83. 

(6) Gordon v. Martin, Fitzg. 803. 
B. N. P. 138; Gilb. Law of Evid. 191 : 
TrI. per Pais, 399 ; Style, 461. But an 
indebitatus assumpsit does not lie on a 
collateral undertaking. Mines v. Scui^ 
thorp. Camp. C. S15, such as in guarantee. 

(c) See Brewer v. Palmer, 3 Esp. C. 
213, eor. Ld. Eldon. J^ery v. Walton^ 
1 Starkie's C. 267 ; supra, 5^. 

{d) Mussen v. Price, 4 East, 147. 
Where the time of delivery is specified, 
the phdntiff having delivered part of tlie 
goods before the time, cannot recover the 
price of such part before the expiration of 
the time ; for the contract is entire, and 
cannot be split Waddington v. Oliver, 
a N. R. 61. 

(e) Dutton v. Solomonson, 3 B. ft P. 
682. 

(/) Mussen v. Price, 4 East, 76. 147. 
Brooke v. White, 1 N. B, 380. Lord 
Alvanloy's dictum, 3 B. & P. 682, contra. 
See tit. Goods sold and delitbbed. 

(g) Stedman v. Oooch, 1 Esp. 6. Pud^ 

ford V. Maxwell, 6 T. R. 52. Owenscn 

V. Morse, 7 T. R. 64. A debtor is not dls- 

f4 



n 



assumpsit: general* 



Indebitatus 
aMompsit. 
—Special 
agreement. 



Indebitatus 
assumpsit : 
effect of 
special con- 
tract. 



ficient) if, from the memorandum, it appear that the bi]l was filed after the 
time when the credit epired (h). 

If the plaintiff declare upon a apecial contract, as well as upon the general 
count, and fail in his proof upon the special count, but yet establish a spe- 
cial contract, the terms of which have been performed, he will still be 
entitled to recover on the general count, provided he would have been en* 
titled to recover on that count if no special agreement had been laid in the 
declaration (t). If he declare upon a special agreement, and prove a special 
agreement which varies from that laid, and which still remains in force, the 
special performance or rescinding of the agreement not having raised asimple 
debt or duty, he cannot recover ; for he cannot recover on the special count, 
on account of the variance ; nor on the general count, since the terms of the 
special agreement have not been rescinded, or reduced by performance to a 
mere duty. In Cooke v. Mumtone (ik), the plaintiff declared for not deliveriog 
thirty-five chaldrons of soU or breeze, according to a special contract. It was 
proved that the contract was for the delivery of thirty-five chaldrons of soil 
(only), and that the plaintiff had paid 2 /. 5«., as earnest, and that it had not 
been delivered on account of a dispute between the parties as to the wharf 
from whence the soil should be loaded ; and it was held that the plaintiff 
could not recover on the special count, on account of the variance, aoil and 
breeze being distinct things; nor upon the count for money had and received, 
since the contract had never been rescinded (J), 

Where the plaintiff proves a special agreement and work done, but not 
pursuant to such agreement, it is said that he shall recover upon the quantum 
meruit ; for otherwise he would not be able to recover at all (m). As if, on a 
quantum meruit for work and labour, the plaintiff should prove that he had 
built a house for the defendant, though the defendant should prove that there 
was a special agreement about the building of it, viz. that it should be built 
at such a time and in such a manner, and that the plaintiff had not per- 
formed the agreement, yet the plaintiff would recover on the quantum meruii, 
although such proof on the part of the defendant might be proper to lessen 
the quantum of damages (n). 



charged by giving an unproductive cheque, 
though he has previously tendered cash. 
Everett v. CoUini, 3 Camp. C. 505. 
Though the cheque was given by an agent 
of the buyer, who was at the time indebted 
to his principal in a larger amount. lb. 

(h) Stoancott v. Wettgarthy 4 Bast, 75. 
Vld. if\fra, tit. Time. 

(t) B. C. P. 139. HarrU v. Oke, 
Winch. Sumrn. Ass. 1759. In Bailer's 
C. P. 139, it is laid down, that if a man 
declare upon a special agreement, and 
likewise upon a quantum meruit, and upon 
the trial prove a special agreement, but 
different from what is laid, he cannot re- 
cover on either count; not on the first, 
because of the variance ; nor on the second, 
because there was a special agreement; 
but in a subsequent part of the same para- 
graph it is intimated that the plaintiff 
ought to have been suffered to recover on 
the indebitatus attumpmt count, provided 
the terms of the special agreement had 
been performed. 

(A) 1 i>r.R.3ol. 



(0 See tit. Monet had and aa- 
CEiVED, for the different cases in which 
a contract is to be considered as rescinded. 
See also Towert v. Barret, 1 T. R. 133. 
Weston V. Downet, Doug. 23. Power v. 
Wellt, Cowp, 818. Giles v. Sduxtrds, 7 
T. R. 181. Hunt v. Silk, 5 East, 448. 
Payn^ v. Baeomb, Doug. 628. 

(m) B. N. P. 139. Mr. KecVs Case at 
Oxon. 1744. But in such case it should 
be shown that the defendant has voluntas 
rUy derived some benefit from the work, 
for otherwise he would be made to pay for 
work which he never contracted for, and 
against his assent. See Ellis v. Htanlinf 
3 Taunt. 55. 

(n) It seems, however, to be clear, that 
the plaintiff is not entitled to recover on 
the quantum meruit or quantum valebant, 
where a specific sum or price has been 
agreed on. 2 Will. Saund. 122, n. 2. And 
as he may recover on the general indebi- 
tatus assumpsit as much as the work is 
worth, kc. the qtumtum meruit and vale- 
bant counts are unnecessary. 



ASSUMPSIT: HONBT PAID. 



73 



Where the plaintiff; under ^, special agreement, has executed tlie work Indebltatos 
improperly, since he has not done that which he engaged to do, and which is ^^^^ * 
the consideration of the plaintiff's promise to pay, it seems to be now settled {o) gpeeial oo»- 
that the plaintiff must recover, if at all, upon the quantum meruit, and that tract, 
he cannot recoTer more than the value of the work and materials to the 
defendant (p). And where the plaintiff has executed his work so ill that the 
defendant has derived no benefit from it, or none which exceeds in value the 
mm which he has paid, the plaintiff is not entitled to recover at all (9), even 
for the labour and materials. 

Where a builder undertook a work of specified dimensions, and deviated 
from the specification, it was held that he could not recover on a quantum 
menat for work and labour and materials (r). Where a special contract has 
been entered into for the performance of a work, according to a specification, 
and deyialions are made by mutual consent, the plaintiff is entitled to recover 
according to the terms of the contract and specification, as far as they are 
applicable, and upon a quantum meruit as to the rest («). A lessor contracted 
to pay his tenant, at a valuation, for certain erections, pursuant to a plan to 
be agreed upon, provided they were completed in two months; no plan was 
agreed upon, and the lessee proceeded, after condition broken, with the ' 
assent of the lessor ; and it was held, that the lessee might recover, as for 
▼ork and labour, upon an implied promise, arising out of so many of the facts 
as were applicable to the new agreement (^). Upon an indebitatus assumpsit 
for board, schooling and clothes, with a count on a quantum meruit, stating, 
that, in consideration that the plaintiff had taken /. TT. as a scholar into an 
academy kept by him, and that he had left it without giving due notice, the 
defendant promised to pay so much as the plaintiff reasonably deserved to 
have, it was held that the plaintiff was entitled to recover for one quarter 
beyond the time when J. W. left ; a quarter's notice not having been given, 
according to the original terms of the contract (u). 

The plaintiff, in this form of action, may recover in respect of any number Variance, 
of different claims included in the same count, provided it be applicable to 
them. Thus, under a count alleging that the defendant was indebted to the 
plaintiff in the sum of 1,000 L for work and labour, goods sold and delivered, 

money had and received, &c., the plaintiff may recover in respect of any 

nmnber of denutnds proved within the different descriptions (x). Under the 

same count he may recover money due from the defendant solely, and 

money due from him as surviving partner (y). 



(0) BaHen v. Butter, 7 East, 470. It 
bad before been held that the remedy of 
the defendant was by a cross-action, and 
bad been lo mled by Bnller, J. in Brown 
T. Baxis, Tannton Lent Ass. 1794, where 
tbe phdntiff had bnilt a booth for the de- 
fendant on a race-eonrse ao ill that it fell 
down, and the defendant had paid part of 
tbe sum agreed for. 

(p) Bat iriicre this defence is intended 
to be aet up, the defendant onght to give 
the pUntiff notice to that effect Batten 
T.3iitter,17East,479. 

(q) Basten v. Butter, 7 East, 473. JSttU 
v.flamlM,3 Taunt. 62; vid. iriflra, Work 
AxnLanonB* 



(r) JSUis v. Bamlin, 3 Taunt. 62. 

(«) Robstm v. CMIfrey, 1 Starkie's C. 
276. Pepper v. Burland, Peake's C. 103. 

(t) Bum v. Miller, 4 Taunt. 746. 

(u) Bardley v. Price, 2 N. R. 333. 
And see Oandall v. Pontigny, 1 Starkie's 
C. 108. Tfie JJHcan Company t. Lang' 
don, 16 Yin. Ab. tit. Master and Servant, 
G. Pl. 6, Ch. Pr. 221. And Miles v. 
Solebay, 2 Mod. 242. 

(x) water V. Timl, 2 Sannd. 121. 

(y) lb. and Richards v. Heather, I B. 
&A.20. 



74 



A6BUMP6IT: KONBY PAID. 



3toicy 



Payment of 



In order to sustain the eount for wumeypaid^ laid out and expended for the 
use of another, the plaintiff must prove, 

FUrtt* The payment of the money. 

Secondly. At the request of the defendant, either express or implied (c). 

The plaintiff must show an actual payment of money, or its equivalent, 
the money. ^^ j^^,^ giving a iecurUy for the payment is not sufficient. A surety for 
the defendant, who had been discharged under an insolvent debtors' Act, 
was obliged to give a bond and warrant of attorney as a new security for the 
debt; and it was held that he could not hold the defendant to bail as for 
money paid to his use (a). 

So, where one of several joint makers of a bill gave the holder a bond, and 
then sued the rest for contribution, in an action for money paid, it was held 
that the action was not maintainable, no money having in fact been paid {b). 
And it has been held that the receipt of stock cannot be considered as the 
receipt of money, either upon an agreement to pay a per-centage on the 
receipt of money (c), or in an action for money had and received {d). 



(z) Vide tuprOf 09. Where the plain* 
tiff, a sheriff's officer, had been obliged to 
pay the debt and costs on an attachment 
against the sheriff for not patting io bail 
above, and the defendant, both bdbre and 
after the sheriff had been fixed, had re- 
peatedly promised to indemnify the plain- 
tiff, and repay him the moa^ expended ; 
held, that to the extent of the debt it was 
money paid to the defendant's use. White 
y; Leroux, 1 M. & M. 347. The defendant 
rsoeived from IT., as a seeurity for goods 
sold, a bill accepted without consideration 
by the plaintiff; H, afterwards paid for 
the goods, and required the bill to be de- 
livered back, whicli the defendant refosed 
to do, and afterwards indorsed it over to a 
third person, who sued and recovered the 
amount from the plaintiff; held, that the 
plaintiff was entitled to recover the amount 
from the defendant as for so much money 
paid for his benefit, but not for the costs 
of the action, which he ought not to have 
defended. Bleaden v. Charlet^ 7 Bing. 
S46. After an agreement by the inhabit- 
ants in vestry to prosecute a party f^t 
encroachments, a committee had been 
formed, who retained an attorney, and a 
judgment was obtained ; the attorney hav- 
ing recovered the amount of his bill, and 
with costs of the action, against the plain- 
tiff, one of the committee, it was held that 
he might recover contribution from the 
others as for money paid. Holmu v. WiHr 
liamson, 6 H. & S. 158. Goods were con- 
signed fVom India to London, the biU of 
lading expressed the freight to have been 
paid, the consignee indorsed the bill of 
lading for value, after vriiich it was found, 
tliat, through the default of the shipper, 
the freight had not been paid; held, that 
the shipowners eonld not detain the goods 
until payment of the freight from the as- 
signees of the bin of lading, and that the 
brokers of the latter, paying the freight in 



order to obtain the goods, after instructions 
from their employers not to pay the fireight, 
it having been paid in India, as they sup- 
posed, paid it in their own verong, and 
could not recover it as money paid for 
their principals. Howard v. xiicktr, I 
B. & Ad. 712. One who has been obliged 
to pay a Joint debt, cannot recover a pro- 
portion from the rest of the abaro of one 
jointly liable who has become insolvent 
Uroum V. Lee, 6 B. & G. 689. 
(«) Taylor V. Higgim, S East, 169. 

fb) Maxwell v. Jamuonj 9 B. & A. 51. 
e) Jones v Brindley, 1 East, 1. 
{d) Nightingale v. Devimiei, 5 Burr. 
8589. The cases of Taylor v. Higginh 
and Maxtoell v. Jameton, seem to overrrule 
that of Barclay v. Gooch, 2 Esp. C. 271 ; 
where the plaintiA having become sare- 
ties for the defendant, and having been 
called upon after his bankruptcy to pay 
the money, gave their promissory note for 
the amount ; and Lord Kenyon held, that 
as the club had consented to take the note 
as money in payment, it was to be so 
considered for the purpose of the action, 
and the plaintiff had a verdict, aad » new 
trial was refused. In Itrael v. Bouglai, 
1 H. B. 239, the defendants being indebted 
to Delvale^, who was indebted to the 
plaintiff, Delvale^ gave an order to the 
plaintiff, on the defendant's rt>%oiriiig them 
to pay what was due to him to the plaintiff, 
and they accepted the order, bnt on Del* 
valee's becoming bankrupt, x«fased to pay 
the amount ; and the Court of Common 
Pleas (Wilson, J. dmmHemU) held, that 
the defendants were to be considered as 
having received so much money as they 
owed Delvale^ to the use of tilie plaintiff* 
lAwrence, J. hi the case of Taykr v. 
Higgint, said, that the case of jirael v. 
BougUu had been afterwards disapproved 
of upon tiiat point, and that he had a note 
. of the case, which differed maSerhdly fron 



asscmpsit: monbt paid. 



75 



The damages to be recovered are measured by the sum which the plaintiff Payment of 
has actually at the express or the implied request of the defendant Where ^^ money, 
the payment has beea compulsory, the plaintiff cannot recoyer more than he 
was under the necessity of paying ; and therefore although bail abore may 
recover f^m their principal any sum which they have fairly expended in 
endeavouring to take him, they cannot recover the costs whidi have been 
occasioned by unadvisedly resisting tbe payment of those expenses (e). 

Secondly. At the defendanfs request, — Where there is no reqttesty either Bequest, 
express or implied, the action cannot be maintained (f), and therefore it 
cannot be maintained where the money has been paid against the express 
direction of the party for whose use it is supposed to have been paid. Where 
two parishes had long been united, and paid a joint sexton, and afterwards 
one claimed a right of electing a separate sexton, it was held that the other 
parish could not, after notice, recover a moiety of the sum paid as the sexton's 
salary, as money paid to the use of the seceding parish (g). So where the 
holder of stock authorized his broker to contract for the transfer of it, 
upon the opening of the stock which was then shut, and the broker sold 
without disclosing the name of his principal^ and the stock rising in value, 
the principal refiised to transfer, alleging that the broker had sold the stock 
at a lower rate than he was authorized to do, and the broker paid the defi- 
ciency to the purchaser ; it was held that since he had paid the money with- 
out the consent of the principal, and could not be considered as a guarantee 
for his principal, he could not recover for money paid to the use of the 

principal (&)• 

The request may be implied firom the special cireomstanees. The action 
lies gainst a shipowner for money supplied to the captain, either in a 
foreign or English port, for necessary repairs, provided it be expressly 
borrowed for that purpose (i) and be so applied. A request is never implied 
when a party is compelled to pay money through his own neglect, or breach 

ofduty(*). 

The defendant's assent is implied (Z) in all cases where the plaintiff is com- Assent 
peDed to pay the debt of another through his default (m) ; as where a surety ^^'' 
is compelled to pay money on the default of his principal. The plaintiff in *"" ^' 
such case must prove the execution of the bond, or other instrument, by 
which he became the surety for the defendant, and that he became so at 
the request of the defendant, or that he absented to it ; and that he wm 
eaUed upon to pay the money, and gave the defendant notice to pay it. 



lint dted. Wilsen, J. althongb he differed 
from the f«tt of the conrt in their opinion, 
that this was money had and received, was 
of optnion tihat tUs was evidence under the 
count, upon an aeoount ttated. And see 
Wads V. TTttem, 1 Bast, 196; 8uHee§ v. 
Hvhbardj 4 Bsp. C. 203; and i^fra, 70. 

(«) Fiiher v. FcUlowt, 5 Esp. 171. 

(/) Alexander v. Vane, 1 M & W. 711. 

(^ Stoket V. LeufU, 1 T. B. 30. 

(A) Child V. lfor/<y, 8 T. B. 610. So 
if tbe vendor ef stock io be transferred on 
a certain day make defiiult, the vendee 
pnrdiasing the amonat with Us own money 
Qumot TMover the price as money paid. 
UghtfcGt V. Creerf; « Tannt. ftiS. 



(i) Thocher v. Moatet^ 1 Mo. & R. 79. 
Mobifuon v. Z^/Z, 7 Price, 392. Racher 
V. Buiker, I &tarkie's C. 27. Palnwr v. 
Qwiekj 2 Starkie's C. 428. 

{k) PUeher v. Bail^ 8 East, 171. 
Copp V. Tcpham, 6 East, 302. 

(2) The defendant is not liable hi this 
form of action, unless he be primarily liable 
or the liabllit\ be incvred at his eiqiress 
request. An agreement with the plaintiff 
to pay money to a third party is not suffl* 
eient. i%ienoer v. Pon^, 3 Ad. & £U. 331. 
Lubbock w. Tribe, 3 M. & W. 607. 
(«i) MxtUly, Partridffe^ST. R. 310; Dauh 
ion V. Linton, 6 B. & Ad. 621. The phiin- 
tiff need not declare specially. Vander' 
keifd^ V. PaibtL, 3 Wils. 628. BaU may 
recover sudi sums as they liave bsea neccs* 



79 



assumpsit: moxbt paid. 



Money paid 
1^ com* 
polBlon. 



Notice to the party for whom the indemnity is given is not necessary 
preyiously to defending an action on a guarantee ; but if be refuse after 
notice to defend the action^ he is estopped from saying that the plaintiff 
was not bound to pay the money (n). 

Where there are two sureties, each of whom has been obliged to pay part 
of the debt, separate actions should be brought (o), unless the payment has 
been made out of a joint fund (p). Where several are sureties for another, 
and one of them is compelled to pay the whole debt, he may by separate 
actions compel the others to contribute their proportions towards his 
loss (g). 

The defendant as principal, and the plaintiff as his surety, made a joint and 
several promissory note ; the holder gave time to the defendant, JL, a stranger, 
subscribing his name by way of additional security ; the plaintiff having 
paid the money, is entitled to recover the amount as money paid ; the pay- 
ment was not voluntary and the subscription did not annul his original 
liability (r). 

Where one who has been bail sues another who was bail with him, he must 
prore the judgment as well as the execution (s). 

Where a verdict has been obtained against several in an action of as- 
sumpsit, and the damages have been levied upon one, he may maintain 
actions against the rest for money paid to their use (^), and the record will 



sarily and fidrly obliged to expend ; as in 
sending after and securing their principal 
after he has absconded, in order to sur- 
render him. Fiiher y, Fallowi, 5 Esp. C. 
671. In the case of Exall v. Partiidgef 
above referred to, it. B. C being joint les- 
sees of premises, and B. and C having as- 
sigfued their interest to A», the plaintiff, 
with notice of the fieusts, placed his car- 
riage on the premises where A. carried on 
business as a coach builder, to be repaired; 
the carriage was seized as a distress for 
rent, and tiie plaintiff having paid rent in 
the name of the three to redeem his goods, 
it was held that all three were liable on an 
implied promise. Note, that if the car- 
riage had been sold, and the money paid 
over to the landlord, the plaintiff could not 
have maintained his form of action, for then 
this money would not have been paid by 
him. Moore v. Pyckej 11 East, 52. The 
law will not sanction a promise of repay- 
ment where the necessity for payment has 
been occasioned by the default or failure 
of the party who has so paid it ; as where 
an auctioneer, fbr want of taking proper 
precautions in putting up an estate for 
sale has been compelled to pay the auction- 
duty. Copp V. Tophanty 6 Bast, 392. 
But a bailiff who seizes and sells the 
goods of a bankrupt after an act of bank- 
ruptcy has been committed, may after a 
recovery against himself and the execu' 
tion creditor, in an action of trover by the 
assignees, recover from the creditor the 
amount as paid under mistake, though he 
cannot sue him upon an implied engage- 
ment to indemnify him. 2 Camp. 452. 
So there is no implied tutumpnt on the 
part of a sheriff to indemnify an auc- 



tioneer employed by the ther\ff*f bailiff 
to sell goods under a JL fa, Farebrother 
V. AmUyf 1 Camp. 343. Where a person 
has been induced ifcnorantly to commit an 
illegal act, an express promise of indem- 
nity is valid. Fletcher v. Hareottf Hutt 
55. Secus where the party indemnified 
had notice, or may from the nature of his 
office, be presumed to have known, that 
the act was illegal. Martin v. BlUhman^ 
Yelv. 197. But it seems that where one 
person at the request of another igoorantly 
commits a trespass, he is entitled to a re- 
medy in doing that which is apparently 
legal. An executor who has paid legacy 
duties in full, and afterwards paid the 
legacy duty, may recover from a legatee. 
Fotter V. Ley, 2 Bing . N. C. 269. 

(n) Jhiffield v. Scott, 3 T. R. 374. 
Smith V. Compton, 3 B. & Ad. 408. 

(o) Beard v. Bouleotf 3 B. ft P. 835. 

Ip) Ofbome v. Harper, 5 East, 225 ; as 
where the two sureties jointly borrowed 
the money which they paid, and g^ve a 
joint note for It. 

iq) Cmoell v. EdwardM, 2 B. ft P. 
268. Seeue, where the surety who has 
paid induced the co-surety to Join, and 
has taken a bill of sale from the principal 
for his own security. Tharner v. Davis, 
2 Esp. C. 478. 

(r) Cotton V. Simpson, 8 Ad. ft Ell. 
136. 

(s) Belldon v. Tankard, 1 Marsh, 6. 

(t) Merryweather v. Nixon, 8 T. R. 
186. There may, however, be contribution 
if the plaintiff were not avrare tliat the 
transactions were illegal or doubtful. Bettt 
v« Oibbins, 2 Ad. ft £11. 57. Peariton v. 
SheUon,l M.ft W.504. 



assumpsit: money paid* 



77 



be eyidence against them (u). But no action can be maintained by' one of Money paid 
seyerai co-treapassersy or other wrong-doen, to recover such contribution; by com- 
for where the transaction is iileg^, the law will not raise any implied as- ^ 
sumpsit (jt). So where the plaintiff, in consequence of the default of the 
defendant, has been compelled to pay money to relieve himself, which the 
defendant ought to have paid, the defendant's consent will be implied ; as 
where the goods of the plaintiff, a lodger in the house of the defendant, are 
distrained upon by the landlord, and the plaintiff, on default of the defendant's 
paying his rent, pays the amount to redeem his goods (y)» Where an accom- 
modation acceptor defends an action at the request of the drawer, he may 
recover the costs as money paid to the use of the drawer (z). Where a 
earner by mistake delivered to B. the goods of C, and B, appropriated the 
goods, and the carrier on demand, and without action, paid the money, it 
was held that he might recover against B, for money paid to his use (a). 

A. and J3. were employed as assurance brokers, and A. paid the premium 
with his own money ; after the bankruptcy of B, it was held that A, might 
maintain the action in his own name (b). 

If one of two ddttars pay the whole of a joint debt, the law gives him a l°^ui m^i^ 
right to recover a moiety in an action for money paid to the use of the other, 
on the ground that both are liable to pay ; but if one pay the whole of a 
debt in furtherance of an illegal contract, he cannot recover a moiety upon 
an implied contract to pay, since no implied contract can arise out of an 
iUegal transaction. And although the contrary was formerly held(c), it 



transaction. 



(«) Die. in Powel v. Layton, 2 N. R. 



(x) Menyweather ▼. Nixon, 8 T. R. 
186. 

(y) JBxaU r. Partridge, 8 T. R. 308; 
jvpro, note (m). It has even been held, 
that an intermediate indoraer of a bill who 
pays part of the amount to a remote in- 
dorsee, who has obtained a Terdict against 
the acceptor for the whole amount, but 
who lias not levied an execution for the 
part so paid, may recover the sum so paid 
from the acceptor, though there was no 
privity between them, except on the bill 
wliich the Indorsee still continued to hold. 
PornmU V. Perrandy 6 B. & C. 612. But 
he cannot recover the costs of a former 
actkm. I>axo9(m v. Morgan, B. & C. 
(U8; and see Smith y. Napier, tupra, 
147; Fiiher\.Fallowt,tupra,lQ, Money 
paid by the drawer and indorser of a biU 
of exchange to the indorsee is paid for the 
acceptor. Le Sage v. Johmim, Forrest. 
S3. A . holds a lease under a covenant for 
re-entry for non-repair, and underlets to 
B,, who undertakes to repair within three 
months after notice ; after default by J9. 
A, may repair, and recover the amount 
expended. CoUty v. Siretton, 2 B. & C. 
273. Note, the plahitiff declared specially. 

<z) Sowet V. Martin, 1 Esp. C. 182. 

(a) Brawn v. Bodgeon, 4 Taunt. 180. 
Bat see SiUs v. Laing, 4 Camp. 81. 

(6) l^oetcrv. Shepherd, 2 Chitty's C. 
T.lLeSSL 

Ct^ la Faikney v. Beywme, 4 Borr. 
200^ the dsfsodaat had i^vea a bond to 



the plaintiff to secure the amount of one 
moiety of 3,000/., paid by the plaintiff for 
the differences in certain illegal stoclc* 
jobbing transactions for himself and one 
Riduwdson, in which transactions the 
plaintiff and Richardson were jointly con- 
cerned ; and the Court Iield, that since the 
bond was not given for the payment of 
the composition-money, which is proliibit- 
ed by the statute, but only to secure the 
repayment of money wliich the plaintiff 
had advanced for Richardson, upon con- 
tracts in which they had been jointly con- 
cerned, the bond was good. 

It was observed by Lord Kenyon, in 
Petrie v. Hannay, 3 T. R. 418, that the 
decision in FcUkney v. Reynous turned 
wholly on the consideration, tliat the ac- 
tion was upon a bond, and tliat nothing 
had been disclosed in the plea which 
showed any illegality between the parties* 
and tliat Uiey could not talce into con- 
sideration matter not properly introduced 
by the plea. But according to the report, 
2 Burr. 2009, the Court seemed to have 
considered that the agreement to repay 
was not illegal; and see the opinions of 
Ashurst, Bidler, and Grose, Justices, in 
Petrie v. Hannay* 

That case was as follows: A, and B. 
having been jointly engaged in stock- 
jobbii^ transactions, came to a settlement 
with Sieir broiler, who paid all the differ- 
ences; A, paid his own share to the 
broker, and drew a bill on B. for his share, 
which jB. accepted; il.'s executors were 
afterwards soed upon the bill by the brokei^ 



78 



ASSUMPSIT : HONST LBNT; 



seems to ba now settled, that if one of the parties pay the whole of miefa t 
debt at the express request of another party^ and upon a promise -of repay- 
menty he cannot maintain the action, eyen upon the express promise. It 
For another seems to be now also settled on broad and satisfactory principles, notwith- 
^°|^°j^^^ standing the doubts which once prevailed, that money advanced by one 
person to another, with a knowledge that it is to be applied in furtherance 
of an illegal purpose^ cannot, after it has been so applied, be recovered. 

In the late case of Cannon v. Bryce (d), which was an action to recover 
money lent, and applied by the borrower for the express purpose of settling 
losses on illegal stock-jobbing transactions, to which the lender was no party, 
it was held, on very broad principles, that such an action could not be main- 
tained. The distinction between malum prohibitum and mabmi in se, was 
denied. It was said, that if it be unlawful in one man to pay the money, 
how can it be lawftil in another to furnish him with the means of payment ; 
and it was held, that the case was not distinguishable in principle from that 
of the druggist, who sold to the brewer, for the purpose of being mixed with 
beer, certain drugs, which the latter was prohibited by act of parliament 
firom mixing with the beer (e). 

Where an officer permitted a prisoner to go at large, on his promise to 
pay the debt, in consequence of which the officer himself was obUged to pay 
the creditor, it was held that he could not recover the money from the 



who recoTered the amoant, and the exe- 
catoTB afterwards brought an action for 
money paid for the d<?endanf b use. It 
seemed to be admitted on all hands, that 
the money was to be considered as paid 
with the consent of the defendant; and 
the question tamed npon the illegality of 
the transaction. Three of the Jnd^^s, 
Ashnrst, Boiler, and Grose, were of opinion 
that tiie money was recoverable, since the 
action was not fomided on any promise 
arising by implication of law ont of the 
Ulegal transaction, bat on an express sub- 
sequent promise ; and they considered the 
case as andistingnishable from that of 
Faikney v. Reynout,BJid as standing apon 
the same fboting as if the broker had paid 
the amount with the consent of the de- 
fendant, and brought the action; or the 
testator had himself paid him. Lord Ken- 
yon was of opfaiion, that A. and B. were 
to be considered as peaHcept criminUf 
and that the money was not recoverable. 
In Steen v. tashley, 6 T. R. 61, the de- 
fendant having engaged in stock-jobbing 
transactions witii different persons, his 
broker paid the differences, and a bill was 
drawn by the broker, and accepted by the 
defendant, for part of the sum awarded by 
the plaintiff, and three others, to be due 
from the defendant to the broker on ae- 
count of these differences ; and it was held 
that the plaintiff, who was the indorsee of 
the bUl, and privy to the transaction, could 
not recover upon it. And in Brown v. 
Turner, 7 T. R. 680, where the broker 
had paid the difftrences in stock-jobbing 
transactions, and the defendant, his em- 
ployer, had accepted a bill ibr the amount, 
the eoort held, on the eoastrection of the 
net of parliainenti and the authority off 



Steers v. Lcuhley, that the plaintiff, to 
whom the broker had indorsed the bill 
after it became due, was not entitled to 
recover. In Mitchell and othere v. Cock' 
home, 2 H. B. 380, (Buller, J. being 
absent), A. and S, had entered into a 
partaenhip for insuring ships in tlie name 
otA,f and A, had paid the whole of the 
losses, and it was held that he could not re- 
cover a moiety of such payments from S.; 
and Eyre, L. C. J. distinguisiied the case 
fit>m those of Faikney v. Beynoutf and 
Petrie v. Hannay, since those cases were 
one step removed from the illegal contract 
itself, and did not arise ImmedUtely out of 
it ; and Heath, J. observed, that it did not 
appear that the payments had been made 
Inr ^. at the request or with the consent 
of JB. In t)ie case of Avberi v. Mtae, 
(d B. k P. 971.) it was held that money 
paid by one of two partners on Joint in- 
surances, could not bie recovered from the 
other partner. Lord Eldon in this case 
questioned the soundness of the dedsioa 
in Petrie v. Hannapf and the distinction 
grounded upon an express consent of the 
partner ; and Heath and Rooke, Justices, 
denied the distinction between the case of 
money paid in a concern which is malum 
prohilfUum, and where it is paid in a trans- 
action whidi is malum in te. The cases of 
Booth V. Hodgson (6 T. R.) and Sullivan 
V. Greaves (Park on Insurance, 8,) were 
also relied upon by the Court as strong 
instances to show that the Court would 
not assist a plaintiff In enforcing an agree- 
ment which is contrary to law. 

(<Q d B. ft A. 179. 

(e) Zanaton and others Y, Hughes and 
others, 1 H. & 8. 694. 



assumpsit: MOUST had AKD RBCBIVfiD. 



79 



debtor^ hsTing been gailty of a breach of duty, fjrom which he could not 
deme a cause of action {f). 

The assignment of a debt without the assent of the debtor does not confer Money lent, 
a right of action, the ordinary rule being, that choses in action are not 
assignable ; but if the debtor assent to the arrangement^ it seems that the 
transaction is equivalent to a loan by the assignee to the debtor. If A, owe 
money to B.^ and B. owe the same sum to C^ and the parties agree to the 
transfer, it is equivalent to a loan by C. to A, (g). Where the money has 
been advanced to the defendant's agent, the authority of the defendant to 
the agent most be proved* Such authority may arise out of the special 
circumstances. Thus a shipowner is liable for money advanced to the 
master in esse of necessity (k), 

A promissory note given by the defendant to the plaintiff is evidence 
under this count (t), since the note imports the maker's having so much 
noney of the payee in his hands. But the mere circumstance of the 
defendant having received money from the plaintiff is primA facie evidence 

of the payment of an antecedent debt, and not of the loan of money {k)» 
So the receipt of money by the defendant^ on a cheque drawn by the 

plaintiff on his haaker, primA facie imports a payment, and not a loan, and 

it not evidence to go to a jury ; unless the plaintiff can give evidence of 

money transactions between himself and the defendant, from which a loan 

can be inferred, or of some application by the defendant to borrow 

money (/). 
Interest cannot be recovered without proof of a contract to that effect 

express or implied, or unless a written security be given for the payment 

of the money at a time specified (m). 
A lender of money who has received goods as a security, may recover 

without proof of having returned or tendered the goods (n). 
Under the count for money had and received, the plaintiff must prove, Money had 

1st, the receipt of money by the defendant (o) ; 2dly, that it was received to *"!* ^ 

his (the plaintiff's) use ; L e. his title to it (p). 



(/) Pitcher V. BaUey, 8 Bast, 171. 

^) Wade V. ITttem,! East, 195. The 
It of the debtor is essential, for he 
BMy have an account agafaist the aasignor, 
aad ehoose to insist on his set-off; Imt if 
then be anything like an assent oa the 
part of the holder of the money, it seems 
that the action for money had and re- 
ceived may be supported. See Lord 
SUcnborongh's observations in Stvieet v. 
BtMardy 4 Esp. C. 808; and supra, 7d, 
Bote (<i> It most appear that at the time 
of the promise to pay the debt a defined 
and ascertained sum was dne, FairUe v. 
jDcnIor, S B. & C. 305. Where the 
debtor of the plaintiff having goods at the 
dsfendaatfs wharfii, gave an aatbority to 
the defcndant to sell them, and oat (^ the 
praeseds to pay the plaintiff the balanee 
of freight doe to Urn, and the defendant 
aeeonlliigly sold tilus goods and received 
the psoeeeds^ hM that the authority did 
Bot laquirs a stsmp as an order for pay*> 
acBl of nooey, and that after the sale 
asd faeeipt of the money, the plaintiff was 
eatUisd to soa fi>r money had and n^ 
eslved. Mbu m pk re^s v. Mnamt, 4 C.& P. 



(h) Bocher v. Bushery 1 8tarkie^ C. 27. 
Even in an English port. Bdbinson v. 
Xya/2,7Priee,50S. 

(t) Story yr, ilfAtfM,2Str.719; B. N.P. 
136, 137. Hofris v. Huntbach, 1 Bnrr. 
373. 

(A) WeUh V. Seaborn, 1 Starkie's C. 
474. If a parent advance money to a 
child, it is snpposed to be by way of gift, 
per Bayley, J. Hick v. Keats, 4 B. & 
C. 71. 

(0 Cory V. Gerrish, 4 Esp. C. 9. 

(m) Cotton V. Bragg, 16 Bast, 223. 
Bat see TrOaumyr, Thomas,lH. B.303. 
and tit Ihtbrsst. 

(ft) Laufton v. Newland, 9 Starkle's C. 
73. 

(o) It has been held that proof must be 
given of the receipt of same particular sum, 
and that in de&olt the phdatiff most be 
nonsuited. Bemascem v. Anderson, H. 
Jt M. 183. Barvey v. Archboid, 6 D. & 
B» 504. But see below, and Leeson v. 
SmUh, 4 N. ft M. 304. 

(p) The aeUon esanot be maintained if 
it be against eqaity and good conscience 
that vm money should be rseovoed. 
Doajt V. Bryant 6 B. ft C. ai^l. 



80 



ASSUMPSIT : MONEY HAD AND RBCBIYED. 



Actual re- It must be proved that the money came into the hands of the defendant 
ceipt of the And therefore the action will not lie to recover stock (q). The action ii 
money. ^^^ maintainable against one of two grantors of an annuity, (upon failure 
of the annuity-deed for want of a memorial), who was a mere surety, and 
had received no part of the consideration (r). But a debt may be trans- 
ferred to a third person by mutual arrangement between the parties, on a 
sufficient consideration. If A. be the creditor of B» for money had and 
received, and A, himself is indebted to C in the same amount, and by 
mutual agreement A.'s debt is cancelled, and C is to be the creditor of B^ 
the money in BJs hands is had and received to the use of C. («). A bill of 



(g) Nightingale t. Beviamei, 5 Bnrr. 
8589. Nor against the finder of bank 
notes, although If they be not produced at 
the trial it may be presum^ that their 
value in money has been received. Noyet 
V. Price., 16 6. 3; Roscoe on Evidence, 
800; Select Ca. 242; Chitty on Bills, 
4sB6, 5th ed. ; Longchamp v. Kenny ^ 
I>oug. 188. Where the defendant, captain 
of the plaintiff's ship, drew at Rio a bill on 
the plaintiff's agent in London, for dis- 
bnrsements, and the bill was paid in 
London by the agent ; it was held by the 
Court of C. P. that there was not suffi* 
cient evidence of the actual receipt of the 
money by the defendant. Scott v. MUlar^ 
8Bing. N.C.811. QuT 

(r) Strattm v. Rtutaa, 2 T. R. 806. 
Hiough he has g^ven a receipt for the 
money, lb. And see Scholey t. Daniel, 
2 B. & P. 540. In an action for debt for 
penalties against the surveyors under the 
Stat 18 Geo. 8, c. 78, s. 48, by the suc- 
ceeding surveyors, for not paying over 
monies in their hands, with a count also 
for money had and received, it was held 
that as it appeared that the monies col- 
lected had only come to the hands of one 
of the defendants, the count for money had 
and received could not be supported against 
the two, as there must be evidence of 
something done by each touching the re- 
ceipt of the money, Heudebourch v. 
Langton, 8 C. & P. 5i36. A member in 
a banking firm forges a power of attor- 
ney to transfer stock belonging to trus- 
tees, and after the transfer makes entries 
of the crediting the trustees with supposed 
dividends upon the stock, on the g^und of 
which cheques are drawn by the trustees 
on the firm, and paid. Though the cir- 
cumstances afford primk facie evidence 
against the firm of the receipt of such divi- 
dends, the amount is not money had and 
received by the firm to the use of the 
trustees ; for the transfer being a nullity, 
they are entitled to receive the dividends 
at the Bank of Bngland ; but they may 
recover damages for the false representa- 
tion that such dividends had been received. 
Hume V. BoUand, 2 Tyr. 675. 

(i) IFiitem V. Coi^ilonii, 5 B. & A. 228. 
For the debt may be considered as a loan 
by C. to B., or as so much money had 
and received by B* to the use of C, and 
as so much due on an account stated. 



See Itrael v. Doughu, 1 H. B. 230. Ld. 
EUenborongh's observations in Wade v. 
Wilton, 1 East, 105. Surteee v. Huhbard, 
4 Bsp. C. 208; eupra, 76. 79. U Is es- 
sential to such an agreement that A.'s 
debt Is extinguished. Cuxon v. Chadley, 
8 B. & C. 501. Wharton v. Walker, 4 B. 
Sl C. 165. And the debt transferred must 
be a wrong demand. Blaekledge v. Bar' 
man, 1 Mo. 6c R. 844. Wharton v. 
Walker, 4 B. A; C. 168. The expenses of 
a conveyance on the sale of an estate were 
to be paid equally by the vendor and 
vendee, and it was afterwards agreed that 
if the vendor would pay the whole of tbe 
expense of another transaction, the vendor 
should be discharged of his moiety of the 
expense of the conveyance ; it was held that 
the transaction was the same as if tlie 
vendor had paid the vendee a sum at 
money, the vendee taking upon himself 
the vendor's share of the expenses of the 
conveyance, and that an attorney who had 
for a consideration undertaken to efl^ect 
the conveyance, and not to apply for foi^ 
ther remuneration if the vendor objected 
to pay any expenses, was entitled to re- 
cover against the vendee the amount of 
such expenses as money had and received 
to his use. Noy v. Rei^uUdt, I Ad. & Ell. 
169. Such an arrangement of transfer is 
binding, although before its completion the 
intermediate debtor to the one and creditor 
to the other party becomes bankrupt 
OotQ/bo£ V. Gumey, 9 Doug. 372. Note, 
Uiat in that case the debt due to the 
middle party was not ascertained at the 
time of the agreement, but had been 
ascertained previous to the bankruptcy. 
But see on this latter point Fairlie v. 
Benton, 8 B. & C. 986. So the taking 
credit from a third person is in some in- 
stances equivalent to a receipt of money. 
A» on the 18th paid notes of the Dartmouth 
bank into the Totnes bank, to receive In- 
terest ftom that time. The Dartmouth bank 
continued to pay on their notes till the even- 
faigofthe 19th, when the bank failed. On 
the morning of the 19th, according to the 
course of dealing between the two banks, 
the Dartmouth gave credit to the Totnes 
bank for the amount of the notes, and it 
was held that A. was entitled to recover, 
for tlie giving credit was equivalent to 
.payment OiUard v. Wi$e, 6 B. & C. 134. 
See 2 Ad. & £U. 36. Sprutt v. Hobh^ue, 



RSCBTPT OF THB MONET. 



81 



exchange payable to tho order of the drawer, is evidence in an action by Rcrcipt of 
the drawer against the acceptor of money had and received by the latter to ^® »"oney. 
the use of the drawer (t). The receipt of provincial notes by the defendant, 
which he has received as money, is evidence of a receipt of money by 
him («) ; and it may be laid down as a general rule, that if a thing be 
received as money, it may be treated and recovered as such (x). 

Upon a count for money had and received by the defendant to the use of 
the plaintiff, the latter may prove the receipt of money by the defendant 
ind his deceased partner, and also the receipt of money by the defendant 
himself to the use of the plaintiff; for every partner is liable for the whole, 
and the proving that another person, together with the defendant, received 
the money, does not negative the allegation that the defendant himself 
recelTed it, and therefore there is no variance (y). 

Money received by the defendant's authorized agent, is money received 
by the defendant. But where money is received by the mutual agent of 
both plaintiff and defendant, it cannot be recovered by the former as received 
by the latter to his use (z). 

Where money was paid into a banking-house, for the purpose of taking 
ap a particular bill then lying there for payment, although the banker's 
clerk said at the time that he could not give up the bill, but took the money, 
it was held to be money had and received to the use of the owner and holder 
of the bill, and that it could not be applied by the bankers to the general 
aecoant of the acceptor, who had paid the money (a). But where A. sent 
bills to J3., his banker, directing him to pay part of the produce to (7., and B. 
refused to act upon the order, but received the produce of the bills, it was 
held that C could not maintain an action against B. for so much money 
had and received to his use, since, as between the plaintiff and defendant, 
there was no privity, either express or implied (b). 

And where money has been received, with directions to pay it to anotlier 
in discharge of a bill, but the order is revoked before payment, and the re- 
ceiver is directed to hold it for another purpose, the holder of the bill cannot 
maintain this action (c). 

A banker who takes credit with the underwriter for a loss due to the prin- 
cipal, whereupon the name of the underwriter is proved from the policy, is 



4 Kng. 173, where, per Best, C. J., the 
principle in all the cases is that if a 
thing be received as money, it may he 
treated as such in an action for money 
had and received. 

{t) Thomaan v. Morgan, 3 Camp. 101. 
And see Bills of Exchanob. 

(«) PU^uard V. BojnkSy 18 East, SO. 
JbdT V. Cutworthy cited 4 BIng. 179. 
And even hi a criminal case, on an indict- 
ment &r obtaining money by means of a 
fidse token, the rmlpt of a bank-note of 
the araonnt has been held to be evidence 
to the jury of the receipt of the money at 
the Bank. 

(x) Per Best, J. in apratt v. Hobhotue, 
4 Bing. 179. An agent for the sale of 
goods, refusing to aecoant after a reason- 
able time, may be presumed to have sold 
them. Hunter Y.Welth, 1 Starkie's C. 224. 
But where a defendant, saed for the pro* 
ceeds of a bill, admitted that he had paid it 
into his banker's, and the banker's clerk 

TOL. II. 



was called to prove tliat credit was given 
to the defendant for the bill, the evidence 
was held to be insufficient withoat the 
production of the bill. Atkinton v. Otceuy 
S Ad. & Ell. 35 ; 4 N. & M. 123. 

iy) Richardt v. Heather, 1 B. & A. 29, 
in which tlie doctrine laid down in Spald" 
ing V. Mure and others, 6 T. R. 303, was 
overmled. 

(z) Goods were consigned to A, and 
B., in return for goods sent out by the 
plaintiff, with orders to sell and hold the 
proceeds to the order of the defendant, 
who had a lien on the goods : it was lield 
that the plaintiff could not recover the 
snrplns from the defendant. Tenant v. 
Mackintosh, 4 B. & A. 504. 

(a) Be Bemales v. Fuller , 1 4 East, 590, 
in the note. 

{b) WiUiams Y. BveretifM East, 582. 

(c) Steioart v. Fry, 7 Tauut. 339 ; 
1 Moore, 74. 



G 



82 



assumpsit: money bad and received. 



Receipt of estopped from objecting that he has not received the money (^). Where an 
the money, agent refuses to account far property delivered to him to be sold, and the con- 
trary does not appear, a presumption arises that he has sold it, and received 
the value. And the same presumption may be made against a wrong-doer 
who has wrongfully possessed himself of property which he refuses to produce 
or account for (e). But where goods distrained by the plaintiff were re- 
delivered by him to the defendant, on a promise by the latter to pay the rent, 
it was held that the action for money had and received was not maintainable ; 
for, as the goods were not delivered to be sold, no presumption as to the 
receipt of money could arise (/). 

The plaintiff can recover no more than the net sum received, without 
interest (g). 
To the use The plaintiff must not only prove the receipt of the money, but also an 
2^®P^"*' undertdcing, cjyrM» or mpUed, on the part of the defendant, to pay it to 
him. ^ 

In numerous instances the undertaking is merely of the latter description. 
The action for money had and received resembles a bill in equity (A); and 
whenever the defendant has received money to which the plaintiff is in 
justice and equity entitled, the law implies a debt, and gives this action 
quasi ex contractu. 

The plaintiff must, therefore, prove an undertaking on the part of the de- 
fendant to pay the money ; or a legai {%), or at least an equitable title in 
himself to demand it. 



tiff. 



(d) Andrew v. Robinson, 3 Camp. 122. 

(e) Longchamp v. Kenney, Doug. 137. 
Tlie defendant got possession of a masque- 
rade ticket given to the plaintiff to dis- 
pose of, and to account to the owner for 
the proceeds; and on being required by 
the owner to pay the produce, said, Well 
if I have it, what then ? go to the person 
who received it of you ; let him pay it. 
The defendant on the trial did not pro- 
duce the ticket, and it was held that there 
was presumptive evidence of the receipt of 
money. 

(/) Leary v. Goodson, 4 T. R. 687. 

(jg) Walker v. Constable, 1 B. & P. 306. 
Ti^l^penden v. Randall, 2 B. & P. 447. 

(h) Per Ld. Mansfield, Cowp. 793. It 
has been held that assignees of a bank- 
rupt may recover against his trustees in 
trust to permit the trader to receive the 
proceeds for his life, such proceeds as were 
received after notice of the bankruptcy. 
Allen Y. Impett, 8 Taunt 268. 

(i) The plaintiff is not always entitled 
to recover in this form of action, even 
although he ean show a legal or equitable 
title to money received, without showing 
some privity with the defendant, created 
either by the fact of receiving the money 
or by the circumstances. See Baron v. 
Husband, 4 B. Ac Ad. 611. Wharton v. 
Walker 4 B. & C. 163. Scott v. Parker, 
8 Mer. 652. WediaJte v. Hurley, 1 C. & J. 
83. i9u/tfv.JBri^ain,4B.&Ad.376. A.B, 
and others, being owners of a ship in the East 
India Company** service, B, the managing 
owner employs C as his agent, to receive 
and pay monies on account of the ship ; C 



receives a sum from the East India Company 
on account of the ship, on a receipt si^ed 
by B, as managing owner, and by another 
owner, and placed the money to B*h credit : 
held tliat there was no privity between C 
and the part owners, and that the action was 
not maintainable against C lb. The ac- 
tion does not lie against a sheriff for not 
paying rent due on an execution against 
the tenant. Oreen v. Austin, 3 Camp. 260. 
Where the plaintiff and defendant each 
paid A,, a witness, his expenses, the loeer, 
after paying the winner his taxed costs, 
cannot recover firom A, for money had and 
received. Crompton v. Hutton, 3 Taunt. 
230. Benson v. Schneider, 1 Moore, 76. 
And see Williams v. Everett, 14 East; 
supra, 81 . A bank bill was remitted to A., 
witii an indorsement, <' pay to the order of 
B, (the defendant), under provision for my 
note in fiivour of C." (the plaintiff) ; B, 
received the proceeds, but reftised to pay 
them over to C; held, in an action for 
money had and received by C, that the 
action was not maintainable, without some- 
thing haying been done by the remitter of 
the bill amounting to privity or assent. 
Wedldke v. Hurley, 1 C. & J. 88. The 
clerk to an attorney, in the absence of the 
latter, receives a payment on account of 
a client of the attorney, and gives a receipt 
in his master's name ; the attorney never 
returns ; the client cannot recover from the 
clerk, for there was no privity of contract. 
Stephens v. Badcoek, 3 B. & Ad. 864. 
But where an assignee under a bankrupt's 
commission was insane, it was held that 
his brother, who received money doe to the 



assumpsit: fraud. — waiver op tort. 



83 



The mere bearer of money from one person to another cannot be sued (k). 

The assignees under a joint commission against A, and B, cannot recover 
money paid by B, before his own, but after A,*s bankruptcy, either as money 
had and received to the use of the bankrupts, before the bankruptcy, or to 
the use of the assignees since (/). 

Where money has been paid into the hands of a trtutee for a specific pur^ 
pose, it cannot be recovered so long as the trust subsists, except according 
to the terms of the trust. Thus, money deposited by litigating parties in the 
hands of a trustee, in trust for the party entitled, cannot be sued for except 
by the party entitled {m). A holder of money to be paid over to the party 
entitled according to the decision of a referee, cannot be recovered by the 
party entitled, previously to notice to such holder of the decision of the 
referee (n). Where money has been deposited With an attorney to conduct 
a particular suit, it cannot be recovered till the specific purpose be proved 
to be at an end (o). 

The plaintiff is entitled to recover where he can show that the defendant 
has received money belonging to him under any fraud, false colour or pre- 
tence ; as, that he has received the rents of the plaintifl^s estate {p\ under 
pretence of title, or as an intruder into the plaintiff's office (q) ; and the title 
to the office may be tried in such an action (r). But in such case the plain" 
tiff cannot maintain the action unless he has a legal title to the profits so 
received by possession of the office ; and therefore the nominee of a perpetual 
curacy cannot maintain an action for money had and received against an 
intruder before he has been licensed (»), although it would be otherwise in 
the case of a donative (0* So the action will not lie to recover mere 
gratmUcu8 donatunu to an intruder, such as are given by strangers for show- 
ing a church (u). 

So the plaintiff may recover in any case where the defendant has by fraud 
or deceit received money belonging Jo the plaintiff; for he may waive the 



To the n»e 
of the plain* 
tiff. 



Money ob- 
tained by 
fraud. 



Waiver of 
tort 



ertate, was liable to a new aaaignee. Stead 
T. TkonUan^ 3 B. & Ad. 367. A party, 
after inproperly allowing the debtor to be 
diacfaarged without paying the full debt, 
paid oat of his own monies 100 2., which 
was agreed to be returned to him as soon 
as the residue of the debt was recovered ; 
beldy that as soon as received it became 
oiooey had and received to the use of tlie 
perM>n so paying it, and that he need not 
declare as on a contract depending on the 
contingency. PlatU v. Lean, 3 C. & P. 
561. Per Lord Mansfield, Mou» v. Mac- 
farhmey Burr. 1008; and per Ld. Ellen- 
borough, (4 M. k. S. 478) : the action is 
maintainable wherever the money of one 
man has, without consideration, got into 
the pocket of another. 

(h) Colet V. Wright f 4 Taunt. 198 ; and 
see BuUtr v. Harruon, Cowp. 566. Cox 
T. Prentiee. 3 M. & S. 344. Bdwards v. 



fibd^iisi^,5Taunt. 181 . HorirfaU v. Hand- 
Uffp 8 Taunt. 136. But an agent who pays 
over money after notice tliat the right is 
disptttedf is liable. JSdwardt v. ffotkUng, 
6Tranft.l81. 

(0 Smith V. Goddard, 3 B. & P. 465. 
Bat httag Joint assignees of both, they 
wtj mover ibr money bad and re- 



ceived to the use of either. See tit 
Bankrupt. 

(m) Kerr v. Otborrie, 9 East, 378. And 
money so deposited can be recovered from 
the stakeholder only, and not from the 
principal debtor. lb. 

(n) WUHntan v. Goclfrey, 9 Ad. k, £11. 
536. And it was held that his changing 
the cheque which he held, into money, 
did not render Mm liable. 

(o) Case V. Roberts, Holt's C. 500. 

(p) For in such ease an action of ac- 
eount wiU lie ; and whenever an account 
will lie, an action of indebitatus assumpsit 
vriU Ue. Aris v. Stukely, 2 Mod. 360; 
1 Salk. 9. 

(q) Aris v. Stukely, 2 Mod. 260; T. 
Jon. 126; 1 Lev. 245; 2 Show. 21. 

(r) Ibid, and 2 Vent. 170; 7 Mod. 
147. 

(s) Powell V. Milbank, 1 T. B. 399, n. 
B. V. Bishop qf Chester, 1 T. R. 403. 

(0 PoweU V. MUbank, 1 T. R. 399, n. ; 
B. v. Biihop qf Chester, 1 T. R. 403. For 
there tlie tiUe accrues upon mere nomhia^ 
tion. 

(u) Boyter v. Dodsworth, 6T, R. 081. 

2 



84 



assumpsit: money had and received. 



Fraud. 



tort, and rely upon the contract which the law implies for him : as where 
the plaintiff's clerk having received bills from customers for the plaintiff, 
pays them over to the defendant to effect illegal insurances (x). Where A. 
under false pretences procured a bill of exchange from B., and il.'s assignees 
received the amount, it was held that B. might recover against the assignees 
for money had and received (y). 

In the case of Arit v. Stukefy (z), it was said by the Courts that mdebUatui 
atmanpmX would lie for rent received by one who pretended a title, because 
an action of account would lie. But this, it should seem, must be under^ 
stood of rent received from a lawful tenant, where an ejectment cannot be 
brought ; for it seems that an action of account does not lie against a dis* 
seisor, or other wrong-doer (a). And it has been held, that an action of 
assumpsit for rents received would not lie against a defendant who claimed 
title to the premises (d). 

But it was held that a woman might recover against a man who, having 
a wife alive, pretended to marry her, and received the profits of her 
estates (e). 

Where a creditor of a bankrupt received, in common with the rest of 
the creditors, a composition of 8 1 . in the pound, and then recovered the 
whole amount from the acceptor of a bill which he held as a security for 
the debt, it was held that the bankrupt was entitled to recover the amount 
as money had and received to his use {d). 



(x) CZorAs V. Shee^ Cowp. 197. Ughtly 
V. Chtuton, 1 Taunt. 112. Sadet v. Van- 
deputy 5 East, 30, n. See B. N. P. 190; 
Kitchen v. Campbell^ 3 Wile. 304, where 
goods were sold under an execution after 
an act of bankruptcy committed. Reed v. 
Jomer, 1 SUrkie'a C. 134; B, N. P. 131. 
Thoma* v. Whipy B. N. P. 133, where 
Parker, Ch. J. eaid he knew of two cases 
only where the phiintiff had not such elec- 
tion ; the one was in case of money won at 
play, and the other in case of money paid 
by a bankrupt (though on a valuable con- 
sideration, after an act of bankruptcy com- 
mitted) ; for you cannot confirm Uie act 
in part, and impeach it for the rest. So in 
general where goods have been wrongfully 
taken and distrained, and converted into 
money, the plaintiff may waive the tort, 
and recover the dear amount of the mon(*y 
produced by the sale of the go^xis. See 
Fdtham v. Terry ^ B. N. P. 131 ; Cowp. 
410 ; Arit v. Stukely, 3 Mod. 260; T. Jo. 
126 ; 2 Show. 21 ; Hotfxml V. WoMf, 2 Lev. 
246 ; 1 Ld. Ray. 700. The sherifis seized 
and sold under an execution a pony 
jSlaimed by a third party, who it appeared 
had originally purchased it whilst under 
coverture, and had, since her husband's 
death, kept and paid for its feed ; and it 
was held, that as against a mere wrong- 
doer, she had a sufficient possessory title, 
and might waive the tort, and sue for the 
amount produced by the sale. Oughtan v. 
Seppinffi, I B,Sc Ad. 241. See further 
Manifold v. Morru, 6 Bing. N. C. 420. 

(y) Harrimm v. WaUur, Peake's C. 111. 
See Wm%» V. Fneman^ 12 Bast, 658. So 



iembUf where a legatee obtains payment 
from an executor by fraud. Croe\ford v. 
Winter, 1 Camp. 124. So where the de- 
fendant, being a married man, married the 
phiintiff, and received the rente of her 
land. 1 Salk. 28. And see Abbots ▼. 
Barry, 2 B. & B. 360 ; 5 B. Moore, 08. 
JHoffon V. Shee, 2 Esp. C.622. Brittowy^ 
Eattman, Peake, 223 ; 1 Esp. C. 172. 

iz) 2 Mod. 260. 

(a) Bac. Ab. Accokft, [B.] 

lb) By Wilson, J. In Ctmningham v. 
Lawrents, 1 Bac. Ab. 260, 5th edit in the 
note ; and he nonsuited the plaintiff. ^ And 
see Use and Occupation; and ir\fra, 
85, n. (o). 

(0 Hatien v. WaUu, 1 Salk. 28. 

(d) Stock V. Mawton, 1 B 5p P. 2B6. 
There was a clause in the deed by which 
the creditors agreed to release all debts 
and to give up all securities, &c. ; s°d it 
was the clear intention of the parties that 
all should share equally ; and it was a fraud 
on the other creditors to receive more than 
they did. Where the creditors, by an bi- 
stmment not under seal, agreed to receive 
a composition of 12 «. in the pound, pay- 
able by instalments, and the agreement did 
not contain any stipulation for delivering 
up collateral securities, it was held that a 
creditor might avail himself of a collateral 
security, (a bill drawn by the insolvent 
and accepted by a third person) ; Thoniat 
V. Courtnay, 1 B. & A. 1 ; for an under- 
taking to deliver up securities was oot to 
1>e implied. So where a plaintiff has been 
induced by a fraud and deceit to purchase 



ASSUMPSIT : DURESS. 



85 



The defendant faaTing obtained payment by a false representation of 
default in the plaintiff's agent in honouring a bill gri^en for the amount, 
it is not necessary preyious to the action to tender the bill ; for the right 
accrues on the payment of the money upon the misrepresentation offsets («). 

So the plaintiff may show that he has been compelled by duress to pay Dums. 

money to the defendant; as that he was obliged to pay an exorbitant 

, demand to retrieve his goods from pawn {f), or to procure his admission 

into a copyhold {g) ; or, being a publican, that it was pud to the justices 

of a borough, who unlawfully demanded it in order to procure a renewal of 

]us licence (A) ; or to the toll-keeper of a turnpike gate (t) ; or to a sheriff 

who exacts a larger fee than he is entitled to (A) ; for in such cases the 

parties are not on an equal footing, and the payment cannot be considered 

as yoiuntary (/). So it lies to recover money levied under a conviction 

which has been quashed (m) ; or money which has been paid to a revenue 

officer to procure the release of goods seised as forfeited (n), but which 

were not liable to be seized. The plaintiff cannot, however, substitute this 

form of action for the more appropriate ones of trespass or replevin, when 

they are the specific remedies provided by the law for the particular 

grievance (9). And therefore where the proprietor of cattle wrongfully 



goods or an interest in land, to which the 
Tcodor has do title, in consequence of 
which he has lost the goods or lands, an 
action lies to recover the price. See Mat" 
thews T. HolHngi, WoodMl's Landlord 
•Bd Tenant, 2d edit. 85; Crippi v. Reed^ 
8 T. R 006; ir\/ra, tit Failubb of 

CoysiDBHATlON. 

(e) Pope V. Wray, 4 M. & W. 451. 

(/) Attleyr.Iiey7u>lds,StT.916;B.y.'P, 
192. The Court said that it was a pay- 
neai}3j eompuUion^ for the plaintiff might 
bave had such an immediate want of his 
Koods, that an action of trover would not 
la?e answered his purpose ; and the rule 
wUnti mm Jit iiyuria holds only where 
the party has a freedom In exercising his 
will FUzroj/ T. Owyllim, 1 T. R. 163. 
Stauj where there is no immediate and 
Client necessity for the redemption of 
goods, or preservation of the person. Ful- 
^am T. Down, 8 Esp. C. 26, n. 

iff) Leakt v. Lord Pigot, Staff. Sum. 
Am. 1790, Sel. N. P. 87. 

{h) Morgan t. Palmer, 8 B.&G. 729. 

(t) FeanUey y. Mortey, 5 B. & C. 25. 
Panom v. Blundy, Wightw. 22. See also 
^^aw T. Woodeotk, 7 B. & C. 73. Athe 
▼• BaMoute, 3 M. it W. 646. 

(*) Dew y. Partons, 2 B. & A. 568. 

(0 WaterJunue v. Keen, 4 B. & C. 200. 
IVotloe of action ought to be given of such 
BQ action, where tiie statute requires it, 
M anything done under the Act. Ibid. 
Where the toll is imposed on carriages 
fitiwn by honet, and an exemption for 
persons repassing the same day with the 
ome horaes and carriage, or with the same 
l^orses or carriage, and the same carriage 
ninniM the same day drawn by different 
hoTsetjOo second toll is payable. Wiltiamj 
V. Sangar, 10 East, 56. Wttterhouse y. 



Keen, 4 B. & C. 200. Jackaon v. Curwen, 
5 B. & C. 31. Chambers v. Williams, 
5 B. & C. 36. When the toll is upon horses 
drawing the carriage, with a similar ex- 
emption, no second toll is payable if the 
same horses return with a different car- 
riage. Gray v. Shilling, 2 B. & B. 30 ; 
per Bay ley, J. 5 B. & C. 84. Norris v. 
Poate, 8 Biogh. 41. Where the toll is on 
horses, and the exemption is in respect of 
the same horses and carriage, a second 
toll is payable unless both carriage and 
horses be the same. Loaring v. Stone, 
2 B. & C. 515. An exemption of horses 
attending cattle returning from pasture, 
does not exempt a horse ridden by the 
owner to fetch cattle from pasture. Har- 
rison v. Brough, 6 T. R. 706. See further 
as to the construction of Acts imponlng tolls, 
&c., Leeds and Liverpool Canal Company 
y. Hustler, 1 B. & C. 424. B. y. Trustees 
qfBury and Stratton Boads, 4 B. & G. 
363. Phillips V. Hooper, 2 Chitty, 112. 
Afq/or v. DenAam, 5 Taunt 340. Harrisom 
y. James, 2 Cbitty*8 G. T. M. 547. 

(m) Feltham v. Terry, B. N. P. 131, 
cited Cowp. 419 ; 1 T. R. 387. 

(ft) Irving v. Wilson, 4 T. R. 485. 

(0) Where the defendant claims title, an 
action of assumpsit for the rents will not 
lie against him, supra, 84, note {b) \ and 
semble, he ought to bring ejectment, or if 
ejectment cannot be brought, an action 
against the tenant who paid the rent in 
his own wrong. Cunningham y. Laurents, 
1 Bac. Ab. 260, 5th ed. And in an action 
for use and occupation by a stranger, the 
title cannot be tried. Morgan y, Ambrose, 
Peake's Ev. 258. And see Stapt^ld 
V. Yewd, and Sadler v. Evans, B. N. P. 
133. 

63 



86 



assumpsit: money had ako rbceivbd. 



I>ure8». distrained, pays money in order to obtain the possession of them, he cannot 
recover it in an action for money had and received, but must proceed in 
replevin or trespass (/»). So it is if a tenant, under threat of distress, pays 
more rent than is due (q). But it was held by the Court of Common Pleas^ 
in a subsequeut case, that the action lies to recover money which has been 
obtained through fear of process by distress by an excess of authority, 
although it had been paid over to a third person, who was the proper 
officer to whom it should have been paid, in case the distress had been 
legally made (r). 

Mistake. So where money has been paid under a mistake to one who is not 

entitled to receive it, and who has no claim in conscience to retain it (s) ; 
as where monfy is paid to the assignees of a bankrupt by a debtor to the 
bankrupt, without claiming a set-off due to him (t). And eo it was held 
where the defendant, supposing himself to be the legal representative of a 
lessee for years, sold the term and delivered the lease to the plaintiff, who 
was afterwards ejected by the rightful administrator (u). But, although 
the party paid the money under a mistake, in fact, yet if he was guilty of 
negligence in doing so, where* he might have known the fact, and ought to 
have known it, he cannot recover. As where the drawee of a bill of ex* 
change, the signature of the drawer being forged, pays the amount (x). So 
where bankers paid the amount of a forged acceptance to an innocent holder 
for value (y). So a foriioriy if the party who pays by mistake occasions 



(p) lAndon v. Hooper^ Cowp. 414. In 
AnMComh v. Shore, 1 Camp. C. 285, Sir 
J. ManBiield, C. J. held, that an action 
on the case would not He for detaining 
cattle distrained damage-feasant after ten- 
der of amends, the tender not having been 
made till after the impounding. 

(q) Knibbt v. HaU, 1 Esp. 84. Lothian 
V. HendertOHy 3 B. & P. 520. 

(r) Snotodm v. DavU, 1 Taunt. 350. 
Upon a distress made, the tenant, in con- 
sideration of forbearance, promised to pay 
the broker's charges; time was accord* 
iugly given, and the cliarges paid, but the 
amount thereof, as well as of Uie rent de- 
manded, was at tlie time objected to ; held 
that the payment was not voluntary, and 
that he might recover back such charges 
as were uot usually allowed ; the broker, 
as a public officer, cannot be permitted to 
exceed them. HilU v. Stvrt, 5 Bing. 37, 
and 2 M. & P. 96. A creditor, upon threats 
of proceeding to a bankruptcy, obtained 
from his debtor, before signing a compo- 
sition-deed, bills to the full amount of his 
debt, which he indorsed over to a third 
person, who, when the^ became due, en* 
forced payment from the debtor by action ; 
held, that it was not to be deemed a case 
of par delietum, but as of money obtained 
illegally and extorsively, and might be 
recovered back as money had and received 
by the defendant, through the medium of 
the person to whom by his order it was 
paid. Smith v. Cuff, 6 M. & S. 160. 

(f ) Bonnell v. Foulkes, 2 Sid. 4 CHppt 
v. needy 6 T. R. 606. 

(0 Bise V. Dickinton, 1 T. R, 285. 
MUnet V. Duncan, 6 B. & C. 671. Hodg^ 



urn V. Williamt, 6 Esp. C. 29. Vide Cob- 
den V. Kemrick, 4 T. R. 432. in no^. and 
ii{fra, 

(tf) CWppt V. Beed, 6 T. B. 606. 

\x) Price V. NeaLe, 3 Burr. 1554; Ab- 
bott, L. C. J. in WiUdnton v. Johnton, 
3 B. & C. 428, observed, that the opinton 
of Lord Mansfield in this case appears to 
have been g^unded not on the delay, but 
on the general principle that an acceptor 
is bound to know the handwriting of the 
drawer, and tliat it is rather by bis fiiolt 
and negligence than by his mistake that he 
pays on a forged signature. An acceptor 
of a bill of exchange is liable though the 
bill be forged. Smith v. Chetter, 1 T. R. 
654; ir\fra, tit. Bill of Exchanob. 
Where the drawee, without looking at the 
bill on its being presented for payment, 
desired the holder's clerk, who presented 
it, to call again on a subsequent day. Lord 
Kenyon held that he was not excluded from 
the defence of forgery of the drawer's sig-* 
nature, as he had not looked at the bill. 
But on proof that the defendant had in 
other instances paid bills so drawo, be 
being connected with the supposed drawer 
in business, Lord Kenyon held that be 
could not set up forgery as a defence. 
Barber v. Oingell, 3 Esp. C. 60. 

(y) Smith v. Mercer, 1 Marsh. 453. 
Chambre, J., who tried the cause, thought 
that the plaintiffit were entitled to recover. 
Dallas and Heath, Js. werr of oplniou that 
they were uot so entitled, on the ground of 
the fault or neglect of the plaintiffs, who 
ought to have known the signature of tlieir 
customer. Gibbs, C. J. held, that the 
delay which had occurred (the forgery not 



assumpsit: money paid by mistarb. 



87 



delay aod inconyenience to the holderB of the bill (z). But if one party, M%ttVfT 
under a mistake, induce another to act on the same mistake, so that negli- 
gence is as imputable to the one as to the other, the latter is, on the gene- 
ral principle, entitled to recover (a). 

If A.f being indebted to ^., pay the amount to an attorney, who sues in 
B,'§ name, but without any authority from £., the latter may still recover 
against A.y but A, may recover against the attorney, although he was im- 
posed on by a counterfeited warrant of attorney (b). 

When money had been paid on account, and a dispute afterwards occur- 
ring, a balance was struck omitting to notice the sums paid, and the plaintiff 
paid the whole balance, he was permitted to recover as for money paid 
under a mistake of fact, in the hurry of business (c). 

But money paid under a knowledge of all the facts, or where the party Mistake in 
possesaes full means of knowledge, cannot be recovered on the ground that ^^* 
the plaintiff mistook the law (d). 



hsTiag been di80over^d for a week) was 
sufficient for the decision of the canse ; 
intimating, however, that he did not mean 
to dissent finom the laiger gronnd on whieh 
the case had been put by the two former 
Judges. See also Hall v. Fuller, 5 B. & C. 
750; injra, tit. Negliobnce. 

{z) See the caseii last cited. WUkiiuon 
T. J^ohnscnj 3 B. & C. 428 j and see Smith 
v. CheMter, 1 T. R. 654. 

(a) A, paid to B. a navy bill, purporting 
to be of the valae of 1,8002., but which 
was in reality worth Q002. only, a figure 
having been forged, and it was held that 
B. was entitled to recover the difference 
from A. who was ignorant of the fraud. 
J4me9 V. Byde, 5 Taunt. 488; 1 Marsh. 
157. So in Bruce v. Bruce, 5 Taunt 495. 
So where the plaintiff in London, at the 
request of tiie defendant, the holder of a 
bill purporting to ha?e been iiuiorsed by 
H, at M. BBd dishonoured, paid the amount 
the same day for the honour of H, (whose 
same was forged), but gave notice to the 
defendant in time to enable him to give 
notice of the dishonour of the bill to the 
preYioDS parties by that day's post. Wil- 
imton V. Johmon, 3 B,ScC, 428. And 
although the plaintiff in the above case 
had struck out the names of the indorsers 
sttbieqaent to that of H., it was held that 
this having been done by mistake, did not 
alter the rights of the parties, but was 
capable of explanation by evidence. lb. 
8o where the phiintifis discounted for the 
defeodantfl a bill of exchange, which the 
letter did not indorse, and the signatures 
of the drawer and acceptor, the latter of 
whom kept an account with the defendants, 
were forged. FuU^r, SmUh,n.icM,49. 

(ft) Bobton V. Eaton, 1 T. R. 62. 

(c> Lucas V. Woriwick, 1 Mo. & R. 
2d9u Where an estate is sold, which turns 
out to be of less value than the price given 
for it, the difference cannot, in the absence 
of fraud, be recovered. Cox v. Prentice, 
3 M. & S. 3S0i per Le Blanc, J. But if 
the parties agree to abide by the weigh- 



ing of any article at particular scales, 
and In the weighing an error not noticed 
at the time takes pUice, from misreckoning 
a weight, in consequence of which the 
article is taken to be of greater than its 
real value, and the price is paid, money 
had and received is sustainable. Per La. 
BUenborough, ifr. 

(d) Bilhie v. iMndey, 3 East, 400. Louny 
V. Bourdieu, Dougl. 467. Cha(field v. Pasp" 
ion, cited 2 East, 470. Baviet v. Wation, 
8 N. & M. 700; and see TheBast India 
Company v. Tritton, 3 B. & C. 280 ; and 
tf|/ra, 88, note (m). Ld. BUenborough, in 
the case of Bilbte v. Lumley, observed that 
in the case of Clm^field v. Paspton, 2 East, 
471, note (a), it was so doubtful on what 
the case turned, that It was not reported, 
Ashurst, J. had in that case intimated that 
if money was paid without full knowledge 
of the facts, and under, what he termed, a 
blind suspicion of the case, and was found 
to have been paid unjusUy, it might be 
recovered. Ld. Kenyou observed that the 
plaintiff had not paid the money under a 
/air knowledge, and that he had done so 
under a protest ; but Orose and Lawrence, 
Js. seem to have doubted the sufficiency 
of these grounds; and Lord BUenborough, 
in Bilbie v. LuwXey, seems to hitimat^ 
that the principle of decision in that case 
was not sufficiently clear to make it a pr&> 
cedent. It makes no difference that the 
party paid the money under a protest, de- 
claring his intention to bring an action to 
recover it. Brown v. M^Kinnally, 1 Esp. 
C. 279 ; see also S. P. Cartwright v. Row^ 
ley, 2 Bsp. C. 723. Upon the same prin- 
ciple, the giving a bill of exchange or pro- 
missory note for the amount of a debt, 
precludes the debtor from afterwards dis- 
puting the amount. Nash v. Tumer, 1 
Esp. C. 217. Solomon v. Turner, 1 
Starkie's C 51. The same reasons also 
apply where the amount has been allowed 
in account. Skyring v. Greenwood, 4 
B. Sc C. '281. So if the veudor waive a 
contract for the sale of goods, he cannot 
G 4 



88 



ASSUMPSIT: MONEY HAD AMD RBCEIVBD. 



Mistake in 
law. 



Money re- 
ceived by 
an agent. 



Where the captain of a king's ship brought home in her public treasurei 
upon the public servire, and also treasure of individuals for his own emolu- 
ment, and received freight for both, and paid over one-third of it (accord- 
ing to the usual practice) to the admiral, and having afterwards discovered 
that the law would not have compelled him to pay the third, brought an 
action against the executrix of the admiral to recover it back ; it was held, 
that he could not recover back the private freight, because the whole of 
that transaction was illegal ; nor the public freight, because he had paid it 
under a full knowledge of the facts, although under ignorance of the law, 
and because it was not against conscience for the executrix to retain it(e). 
Where money has been paid by mistake, which the law would not have 
compelled the plaintiff to pay, but which in equity and conscience he onght 
to have paid, he cannot recover it(y). As where he pays a debt otherwise 
barred by the Statute of Limitations, or a debt contracted during his 
infancy (g). 

A plaintiff who has paid the whole of an attorney's bill cannot after 
taxation recover the sum deducted from the bill (A). Where a tenant 
omitted to deduct the property-tax out of his rent, it was held to be a 
voluntary payment, which he could not recover back (i). 

In case of the payment of money to a kiwwn agent, the general rule is 
that the action ought to be brought against the principal (A) ; and mere 
evidence of the receipt of money by the defendant as the agent of another 
is insufficient to support the action (I) ; and an agent, who having received 
money pays it over without notice to the contrary, is not liable, for it would 
be unjust that he should suffer from the mistake of another (m) ^ and the 



afterwards Insist on the contract because 
he waived the contract in ignorance of the 
law. Oomery v. Bandy 8 M. & S. 378 ; 
see also Lothian v. Henderson, 8 B. & P. 
690. So if a drawer promise to pay a bill 
of exchange, with knowledge that time 
has been given to the acceptor. Steoeni 
V. Lynch, 12 East, 88. See tit. Bills op 
ExcHANOB. It has even been held that 
a plaintiff cannot recover in respect of a 
claim which he might have insisted on in 
a former action when he was defendant, In 
reduction of damages. Kist v. Atkinton^ 
2 Camp. 68. 

(e) Sir C. Bruhane v. Dacret, 6 Taunt. 
143 ; and see Stevent v. Lyneh, 12 East, 
88. 

(/) 1 T. R. 286. 

{g) Bize v. IHcHnMon, 1 T. R. 286. 

(A) &otMrv.PopiKfi,2Starkle'sC.85. 

(i) Denbyy. Moore, 1 B.&A. 123. An 
unsQccessftd party in a cause, who pays 
the witness a second time over (the winner 
having already paid) in the taxed costs, 
cannot recover it back. Crompton v. Hut' 
ton, 3 Taunt. 230. So it has been held 
that if a lessee be evicted, he cannot re- 
cover the rent which he has paid. See 
Stmf{forth v. Staggt, cited 1 Camp. 898, n. 
iCin^ V. Afor^in, cited 2 Camp. 268. But 
where the tenant, after payment of rent, 
was ejected by a third party establishing 
his titie to the premises, and who tmb^e- 
quently recovered mesne profits during the 
time for which the rent had been paid, it was 



held that the tenant was entitled to recover 
it back firom the party to whom it had 
been paid, as money had and received, he 
not having set up any title at the trial of 
the gectment. Neiotome v. Graham, 10 
B. & C. 234. See 1 Freeman, 479, note{d), 
2d edit. After the death of a bankrupt 
tenant for life, his assign)ees were allowed 
to recover as money had and received the 
by-gone rents, from one who had received 
them under a fraudulent assignment 
Brown v. Bap, cited 3 Buss. Ac Myl. 124. 
481. 

(k) B. N. P. 133. Sadler v. JSvant, 
4 Burr. 1094. Smith v. Bromley, Doug. 
696, n. HorrfdU v. Handley, 2 Moore, 5 ; 
9 Taunt 136. The action does not lie 
against an excise officer who has received 
duties after the repeal of the Act, but who 
has paid over the amount to his saperior. 
Oreemoay v. Hurd, 4 T. R. 658. WkU* 
bread v. Brookeebahk, Cowp. 69. And see 
Campbell v. Hall, Cowp. 204 ; there the 
dnties remained in the hands of the officer 
for the purpose of trying the question So 
where a churchwarden has paid over burial 
fees to the treasurer of the trustees of a 
chapel. Hor^fhUr. Handley, 8 Taunt 136. 

{I) As where the agent signs a receipt 
for his principals; e. g, "for S, ^ W.^ 
W, B. Edden v. Bwd, 8 Camp. 809; 
and ^eeStepheney. Badeock,9 B. h Ad. 354. 

(m) B.t a banker, being the agent of .4., 
who indorses a bill of exchange to him, 
receives the amount from theaeoeptor and 



assumpsit: monbt aecbivbd by aobnt* 



89 



party who msde the mistake has his remedy against the principal. It is Money t«- 
otherwise in special cases : as where the agent has, previous to the pay- ^®^^^ ^J 
menty received notice not to pay it over (n) ; or where he has received the 
money maiAfide (o). To make this defence available, it must appear that 
the money was paid to the agent expressly for the use of the person to 
whom he had so paid it over (p) ; and that he has paid it over, or done 
that which is equivalent to such payment {q). 

Where an agent receives money for his principal under a claim of right, 
as for tithe, the right of the principal cannot be tried in an action against 
the agent, if he can show the least colour of right in the principal ; as for 
instance, his having been some time in possession (r). 

Where money is deposited with an agent of the party, his authority is in 
general revocable; and after countermand, the principal is entitled to 
recover it. Thus the authority of a stakeholder may be revoked before the 
decision has taken place (s), and the stake recovered. 



pays It 9W9r to A. The acceptor cannot 
recover Iram 3., althoogh it turn out that 
the bill was hidoned to A,, under a bu|^ 
poted antbority, viz. a warrant of attor- 
ney, which did not warrant the transfer. 
RtMt India Company y, Triiton^ 3 B. & C. 
2S0. Note, that the acceptors had made 
all such inquiries as they deemed to be 
necessary, and that the defendant was not 
privy to the &cts. SembU, that an in- 
dorver does not warrant the genuineness of 
previous indorsements. If A . give a letter 
of attorney to J9. to receive money from 
C, and bring an action against C., C. 
cannot, ezo^t in mitigatloo of damages, 
show that he has paid money to JB, since 
tiie action brought, for the bringing the 
action is a revocation of the auUu^rity. 
B. N. p. 15a. Ca. £. B. 406. So if ^. 
receive qnit^rents for TF., and after notice 
to A, not to pay the money over to W^ 
becanse it is not due, he afterwards pays 
it over, the action lies. Sadler v. JElvaau, 
B. N. p. 133. 

(») Sadler v. JBwme^ B. N. P. 133. 

(o) As where a gaoler illegally receives 
rent from a prisoner for a room in the 
prison. Miller y. Arii, B. R. Hidd. Sitt. 
after H . 41 O. 3, cor. Lord Kenyon. So 
wheze a anm of money has been paid by 
the putative father to a parish ofiioer, 
for the purpose of indemnifyittg the parish 
against a bastard child. Townson v. 
Wiimmy 1 Camp. 39a Waikint v. Heuy- 
Uttf 1 B. A B. 1. Clark v. Johnton, 3 
Btng. 424. StaSa^forth v. Staggt^ 1 Camp. 
306, n. k, 664. King v. Martin^ cited 3 
Camp. C. 868. S. P. ruled by Hullock, B. 
Lane Sfving Ass. 18S6. So if money be 
paid to a baJliiT, who exceeds his autho- 
rity, under terror of process, see 1 Taunt. 
350. 

{p) Snowdeny. Dame, 1 Taunt. 350; 
whne money was paid by the plaintiff to 
a baUiif, who exceeded his authority, in 
ofder to redeem Ids goods, and not that it 
might be paid over to any one in parti* 
cuter. 



(q) If tUngs at the time of the notice 
remain nnaltmd as between the agent 
and his principal, if no advance has been 
made, bills accepted or new credit given 
by the agent, in consequence of the pay- 
ment, he is still liable, although the money 
has been passed in account, or a rest made. 
BuUer v. Harriaon, Cowp. 566. Cox v. 
Prentiee, 8 M. <e 8. 344. And although 
he has paid it over, yet if tlie defendant 
has induced the plaintiff to suppose that 
the money had not in foct been paid over 
before notice, he cannot avail himself of 
such payment. Sdwardi v. HoddUWf 6 
Taunt 615. Seeui, if the situation of the 
agent has been altered. The agents of the 
plaintiff in England were directed by him 
to pay, through the defendants, money to 
be phioed to Us credit in India, which waa 
done, and an entry made in the defondanf s 
books to the eredit of their correspondents, 
to whom they sent advice to account for 
it to the plahitiff: before the letter of 
advice reached their correspondents, the 
latter foiled, having drawn on the defen- 
dants, between the date of such letter and 
the failure, bills, which the defendant had 
accepted to an amount exceeding the 
amount paid in by the plaintiff. It was 
held, that the defendants having only acted 
as directed, and the situation in which 
they stood towards their correspondento 
being altered, the plaintiff could not main« 
tainosmmfun^ against them for the money 
BO paid in. jSPArthy v. CMom, 1 Perr. 
k Dav. 480. 

(r) Siapi^fiMy, Ffftod, Tr. 87 G. 2, cor. 
Lee, C. J., B. N. P. 163 ; Cas. K. B. 400. 

(i) Although, as it seems, the wager be 
legal, for the situation of the stakeholder 
does not differ from that of an arbitrator, 
whose authority is oountennandable. See 
JSUham v. iCifipfmim, 1 B. & A. 683, et 
vid. tf|/T*a, 06. Aliter, where a legal wager 
has been determined against the plainUff. 
Brandon v. Hibbert, 4 Camp. 37. Bland 
V. CoUeit, Ibid. 167. 



tfO 



assumpsit: MONfiY HAP AKO RSCBIVED. 



Failure of 
considera- 
tion. 



Where the drawer of a bill paid the amount to an indorser^ to take it up 
when due, but the bill not having been presented in due time, the drawer 
directed the indorser not to pay the amount, and offered to indemnify him ; 
and notwithstanding this, the indorser afterwards paid the bill, it was held 
that he paid it in his own wrong, and that the drawer migbt recover the 
amount (t). 

A trustee, such as the provisional assignee of a bankrupt, is not liaUe for 
money received by an agent appointed with due care, who has &iled (u). 

Under this eount the plaintiff may also show that he has paid money to 
the defendant upon a consideration whioh has failed* As, for a bill of ex- 
change upon a banker who breaks before it can be tendered to him (x). Or 
for goods whieh have not been delivered (p) ; or money paid as a deposit 
on the purchase of an estate, where the vendor cannot make out a title («). 
So he may recover the money paid as a eonsideration for an annuity, where 
the deeds for securing it have been set aaide for informality (a). Or where 
one of the several securities fails {b). Or where one, having purchased a 
lease from the defendant as the supposed representative of the lessee, is 
ousted by the real administrator (c). But where a personal representative 
assigned a mortgage-deed, which turned out to be a forgery, for a valuable 
consideration, but without any knowledge of the forgery, it was held that 
the purchaser was not entitled to recover the price {d). 

A, pays B. an annuity for the use of an invention, for which B. has ob- 
tained a patent, and it afterwards turns out that the patent was void, the 
invention having been in public use before. A, cannot recover the amount 
so paid (e) ; for he has had the use of it. 



(0 Whitfield v. Saoage, 2 B. & P. 277. 

(u) Raw Y. Cutten, 9 Bing 06. 

(x) B. N. p. 131. See ^so Jones v. 
Ryde, 1 Marshall, 157, where A. paid to 
B. a navy bill purporting to be of the ralae 
of 1,8002. but which was in reality worth 
800 /. only, a figure having been forged ; it 
was held that J9. was entitled to recover 
the difference from^. who was ignorant of 
the fraud. But 'where A. d* Co., bankers, 
paid the amount of a forged acceptance to 
an innocent holder for value, it was held 
that they could not recover the amount. 
Smith Y. Mercer, I Marshall, 463 ; supra^ 
86. 

(y) Str. 407j B. N. P. 181. 

{z) 8 T. R, 610; 3 B. & P. 181. See 
Vbndor and Vbndeb. 

(a) Shore v. Webb, 1 T. B. 732. In such 
case the deeds should be produced, and 
their execution proved, and the setting 
them aside proved by the production of 
the rule of court. See Hichi v. Hicks, 
8 East, 16. 

(5) Scurfield v. Gaivland, 6 East, 241. 
The defendant is entitled to deduct for pay- 
ments made by him in respect of the an- 
nuity. Hicks V. Hicks, 8 East, 16 ; and 
see Davis v. Bryan, 6 B. & C. 661. 

(c) Cripps V. Beed,eT, R.006. In such 
case the assignment should be produced 
and proved, and the ouster should be 
proved by evidence of the judgment in 
ejectment ; and the \vrit of possession, and 
the revocation of the letters of administra- 



tion, should be proved. Lord Kenyon ob- 
served that he did not wish to disturb the 
rule caveat emptor, adopted in Bree v. 
Holbeach, Doug. 664, and other cases ; tliat 
where a regular conveyance was ^^* 
other covenants ought not to be added ; 
and that, in general, a seller covenants for 
his own acts and those of his ancestors 
only ; fai which respect, the case of a mottr 
gagor diflbred from it, as he covenants that 
at all evento he has a good title ; but that 
here the whole passed by parol, under » 
misapprehension by both parties that tnc 
defendant was the legal admhiistrator oi 
the lessee. In the case of Bree v. Boi- 
beach, no action could have been main- 
tained. Where a defendant in possession 
of premises which he formerly held uum 
a tenant for life, who was dead, wW '»* 
interest, under a representation that ^^JT 
a, good lease for seven years, and was *'*JJ^ 
wards ejected, Lawrence, J. held, on tn 
authority of CHpps v. Beed, that the ^ce 
might be recovered. Matthews ▼. ^^J;' 
lings, Salop Summ. Ass. IBOl ; Woodftli s 
Landlord and Tenant, 2d. edit 95. 

(d) Doug. 666. 

(e) Taylor v. Hare, 1 N. R. 260. Vote, 
that the Judges in this case hdd <^<'°"^°^ 
able stress on the consideration ^^^r^^ 
parties acted under a mistake; but so they 
did in the case of Cnpps v. Beed ; the true 
distinction seems to be, that in Taylf^J' 
Hare the plaintiff did in fact derive beneflt 
lromthepatent;andHeath, J. said, ^^ 



assumpsit: rbscindbd coiytraot. 



91 



So where an article, which the vendee has an opportunity of examining, 
is sold without frauds the vendee eannot afterwards recover the price, upon 
discovering that the article was internally defective at the time of sale (f), 

A putative father giving a note for a fixed sum to the parish officers, who 
receive the amount, may recover hack such part as remains unexpended on 
the death of the child, as money had and received to his use {g), A 
plaintiff who has paid money on a consideration not performed, may either 
affirm the agreement hy a special action for non^performance, or disaffirm 
it by reason of the fraud, and bring an action for inoney had and 
received (A). 

Where money has been paid by the plaintiff to the defendant, upon a Rescinded 
eontract which is afterwards reidnded, either in consequence of the nature <^°^'^^ 
of the contract, or by consent (i), or by the act of the defendant, then, since 
the consideration fails, the plaintiff is entitled to recover the money. As, 
vhere the plaintiff paid ten guineas to the defendant for a chaise, on con- 
dition that it should be returned in case the plaintiffs wife did not approve 
of it, paying 3 <, 6d. per day. In the mean time the plaintiffs wife dis^ 
approving of it, the chaise was sent back to the defendant after three days^ 
and left on his premises without his consent, and the Ss. Qd. per day was 
tendered, which the defendant refused to receive ; and it was held that the 
plaintiff was entitled to recover the ten guineas (A). And in Criles v. 
Edwards (f), where the defendant by his neglect prevented the plaintiff 
from carrying a special agreement between them, for the sale of cord- wood 
to the plaintiff, into execution, it was held that the plaintiff might recover 
the sum which he had paid under the contract, as money had and received 
to his use. So, it was held in Dutch v. Warren (m), where the defendant 



eaonot take an accoant here of the profits ( 
it might as well be said, that if a maa 
lease land, and the leasee pay rent, and be 
afterwards evicted, he shall recover back 
the renty though he has taken the fruits of 
the hmd. The defendant sold his patents 
right, such as it was, and tliere was no 
express or implied warranty that the pa- 
tent shoald stand, and there was no fraud." 

(/) Bluett V. Oibame, 1 Starkie's C. 
384. But where the plaintiff, a stock- 
broker, sold for the defendant four Gua- 
temala boads, and paid him the amount, 
and after the hoods had been two days in 
the hands of the purchaser they were 
Ibuad not to be marketable, and the plain- 
tiff took them back and reimbursed the 
pofshaser, it was held that he was entitled 
to recover for the amount paid by him 
t9 the defendant. Young v. Cole^ 3 Bing. 
N. C. 7 JM. 

{g) Watkint v. HewUtt, 1 B. flc B. 1. 
See TaumsoH v. WiUon, 1 Camp. 396. 
Clarke v. Jokmon^ 3 Bing. 444. 8. P. 
cor. Holloek, B. Lane. 8p. Ass. 1836. 
In the ease of Chappel v. Poles, 2 M. & 
W. 867, the money was held to be recover- 
able aithoogh the defendants (the overseers 
who had recaived the money) had paid it 
over to their successors. It seems that 
the whole sum was to be considered as 
QQoey had and received to the plaintiff's 
nite, the oontract being illegal and vo|d, 



{h) B. N. p. 132. 

(i) The plaintiff agreed to let to the de- 
fendant land on building leases, and to 
advance him *— 2., to be repaid by a cer- 
tain day, and the defendant engaged to 
build houses thereon, and to convey them 
as a security: after some of the houses 
had been built, and part only of the money 
agreed to be lent had been advanced, the 
phiintiff requested the defendant not to 
proceed further with the buildings, which 
was assented to, and the agpreement re- 
scinded by mutual consent ; held, that the 
day for repayment being passed, the plain- 
tiff might recover the money advanced on 
the common counts, and was not bound to 
declare on the special agreement. James 
v. Cottony 7 Bhig. a66,and5 M. & P. 26; 
and see Oxendale v. Wetherell, 9 B. & C. 
386. 

(k) rowers V. Barrett, I T. R. 133. 
gale of an article by il. to B., with liberty 
to return it in a month, S, allowing 10 /. 
out of the price paid, and in case B. kept 
the article beyond the month he was to 
pay 10 1, more to A,; B. returning the 
article within the month is entitled to r^ 
cover the price, deducting the 102. Hurst 
V. OrbeU, 8 Ad. k £11. 107. 

(I) 7 T. B. 181. 

(m) Cited 3 Burr. aOlO. SubscriptionH 
advanced under a scheme for establishing 
a tontine to directors, who abandon the 



92 



assumpsit: monby had and received. 



Contract 
still open. 



Recovered 
by legal 
procesa. 



had refused to transfer to the plaintiff five shares in the Welsh Copper 
Mines, according to his agreement, under which the plaintiff had paid him 
the price. 

Where, however, the terms of the special contract are still open, this action 
does not lie. As, where money is paid as the price of a horse warranted 
sound, which turns out to be unsound (n) ; for an action for money had and 
received is not a proper form of action to try the warranty. So, in the case 
of Cooke y. Murutone^ above cited (o), it was held that the money which 
had been paid for the delivery of the soil could not be recovered, whilst the 
contract for the soil remained still open. And in general it seems that 
money paid upon a contract cannot be recovered back after part execution 
of the contract, and where the parties cannot be placed in $t(Uu quo {p). 
If money be paid which is due in honour and conscience, it cannot be reco- 
vered, although payment could not have been compelled (q). 

It is a general rule, that money recovered by means of legal process 
cannot be recovered, although it be afterwards discovered that it was not 
due (r). But the action lies against an overseer of the poor, to recover money 
in his hands levied under a conviction which has since been quashed («). 
So it lies to recover money paid under a compromise of an action ; the 
compromise having failed, and another action having been brought (0* 



scheme, NoeUet v. Crothy» 8 B. & C. 814 ; 
or for the purchase of shares in a joint- 
stock company, Kempsan t. Saunders^ A 
Bing. 6; may be recovered without any 
deduction for expenses. 

(n) Power v. Wells, Dong. 24, n. ; Cowp. 
818. Wetton v. Doumet, 1 Doug. S3. 
Pajfney. Whale, 1 East, 274; 1 T. R. 
133 

(o) 1 N. R. 151. See also HvU v. 
Heightman, 2 East, 146 ; ntpra, 5(5. 

(p) Hunt V. SUk, 5 East, 449. Gilei 
V. Edwards, 7 T. R. 181. Where an in- 
fant has paid money to the defendant as a 
premium for a lease, and has taken posses- 
sion of the premises, he cannot, alter an 
avoidance of the lease on coming of age, 
recover back the money. Hobnes y. Blogg, 
8 Taunt. 608. The purchaser of a moiety 
of his partner's share of a Tessel had enter- 
ed upon and derlTed the full profits of the 
vessel, and also deposited the title-deeds 
with a third person, as a security for money 
advanced to him; held that the vendor 
could not recover as for money had and 
received. Beed v. Blamfford, 2 Y. & J. 
278. An original contributor to a foreign 
loan paid a deposit to the contractor upon 
scrip receipts, and transferred them to the 
defendant in error, and the contractor, the 
plaintiff, afterwards, from time to time ex- 
tended the period of paying up the instil 
ments to stated pericds, on certain terms; 
held that the defendant, omitting to eom^ 
ply with the terms of such indulgence, 
could not afterwards insist upon the con- 
tractor accepting the instalments with 
interest, or returning the deposit, so as to 
maintain oftumptit for money had and 
received. RothiehUd v. Henning$, 4 M. 
4c By. 411 ; 8. C. 12 Moore. 569. The 



plaintiff put money Into the hands of the 
defendant to be paid to J., with the qaali- 
flcation that it was not to be paid over 
until, &c.; before which the plaintiff de- 
manded that it should be paid back ; held 
that he was entitled to recover it back or 
not, accordiuff as the jury were satisfied 
that J, looked to thephdntiff or defendant 
for payment of that sum. Owen v. Boteen, 
4 G. 4c P. 93. 

(q) Farmer v. Arundel, 2 BL R. 824. 

(r) Marriott v. Hampton, 7 T. R. 269. 
See Moeet v. Matfarlane, Burr. 1006; 
B. N. P. ISO. Thaip v. Haw, Ibid. See 
also Broum v. M^KinnaUy, 1 Esp. C. 270. 
There the money was paiU under a protest 
that it was paid withoat prejudice, bat 
Ld. Kenyon, C. J. held, that it was to be 
regarded as a voluntary payment And 
see Hamlet v. Biehardton, 9 Bfaig. 644. 
See also Barhone v. Brent, 1 Vem. 176; 
where the defendant demurred to a bill, 
which stated that the plahitiff havhig paid 
the defendant for goods but lost the receipt, 
the latter recovered in an action, and the 
demurrer was allowed. In that case North, 
Ld. Keeper, said, that if A. having psid 
money in part satisfaction, afterwards is 
compelled by an action to pay the whole 
value, the party who paid the money msy 
recover it at law. The assignee of a bank- 
rupt cannot recover from the plaintlfi^ in 
an action against Uie bankrupt, money 
deposited in lieu of bail, and paid over by 
order of court to the plaintififk, on default 
of depositing a further sum in lien of baiL 
BeynoldM v. Wedd, 4 Bing. N. C. 694. 
6 DowL P. C. 728. 

(«) Feltham v. TVrry, cited ui Birch v, 
Wright, I T. R. 187; and B. N. P. 131- 

(i) Cf^Hien v. Kenrick, 4 T. R. 432. 



UNDBR LEGAL PBOCSSd. — ILLEGAL CONSIDBRATIOK. 



03 



And where the defendant^ knowing that he had no real claim, arrested the 
plaintifT, a foreigner, at Falmouth, on his arrival from abroad, for 10,000/., 
and under the compulsion of a colourable legal process extorted from him 
5O0L as in part payment, the Court held that the action was maintainable 
to recorer the money so paid («). 

Where the holder of a bill of exchange, being a trustee for the plaintiif, 
rued the drawer, and after his bankruptcy his assignees recovered against 
the sheriff, in the name of the bankrupt, for an escape, damages to the 
amount of the bill ; it was held that the plaintiff might recover the damages 
from the assignees, allowing them the costs and expenses (:r). 

It seems to be a general rule, that where money has been paid by the Illegal con- 
plaintiff to the defendant, on a consideration which is illegal in itself (y) "iJeraiion. 
as being prohibited by some statute, but where the plaintiff does not stand 
in pari delicto with the defendant, and cannot be considered as particeps 
erimimM, the money may be recovered. And therefore, where a statute is 
made for the protection of persons standing in the plaintiff's situation, the 
party injured may, even after the transaction prohibited by the statute has 
been finished and completed, recover the money so paid. Here the law 
acts in furtherance of the provisions of the statute ; hence a debtor may 
recover from a creditor all the usurious interest which he has paid beyond 
legal interest (z). 

So the plaintiff may recover the premiums for illegal insurances of num- Action 
hers in a lottery after the chances have terminated in his favour, since the by one not 
contract is not criminal, but merely void (a). Or money given by the plaintiff, P^i<^^P'- 
fts a friend of a bankrupt, to the defendant, a creditor, to induce him to sign 



(«) Jhtke de Cddaval v. CoUifu, 4 
Ad. Al EIL 858. Where a eertiflcated 
bankrupt, on being arrested on a eo. 
«a^ for a debt proveable under tiie oom- 
miaaion, paid the money imder a prcH 
test stating his bankruptcy and eertiflcate, 
and warning the phiintiff that he should 
apply to the Coort to have the money re* 
torned, it was held, that he was not pr&- 
daded from maintaining the action. Payne 
▼. Ckapman^ 4 Ad. & KU. 364. 

{x) BandoU v. BOl, 1 IC. & S. 714, 
Ld. EUenborongh distaUUntt: qu, there- 
ibfe. 

(p) See further on this subject, tit. 
YavnoB urn VairnKB. 

(z) Per Ld. Mansfield, hi Smith v. 
Brtmie^^ Doug. 606, (n) ; B. N. P. 133. 
Lowry v. BowrdmLf Doug. 471. The 
authority of IVMiOyns v. Bamety Skfam. 
411, and 8a]k. 28, has frequently been de- 
nied. In Ckurif v. Shee^ Cowp. 190, Ld. 
Jfaoafield aaid that it had been denied a 
thousand timea And see AUop v. Milton^ 
SeL K. P. 80, 4th edit.; Shore v. 1Fe6ft, 
1 T. B. 789; SeurftM v. GmoUmdj 6 
East, 241. 

(a) By the statute 14 Geo. 3, e 76. 
Jaequea v. GoHi^ly, 8 BL R. 1073. 
Jacfi^ V. WUky, 1 H. B. 66; 8. P. 
ClarhB V. Shm^ Cowp. 190. A^ who buys 
a lione from ^. on a Sunday, not Icnowing 
that B, was a horse-dealer, may recover 
the price, for he was not part%iep9 erjini- 



nt#, and the consideration has foiled. 
Bloxsome v. Williams, 3 B. & C.232; 
and see Drury v. Drfbntaine, 1 Taunt. 
] 34. But note, that the horse was of the 
▼alue of 101., and there was no memoran- 
dum in writing ; and the horse was not 
delivered or the money paid till the Tues- 
day after ; and therefore, as there was no 
complete contract of sale on the Sunday, 
the ease was not within the stat. 80 C. 2, 
c. 7, s. 2. Q^, per Bayley, J. whether 
the statute is not confoied to manual 
labour, and other work visibly laborious, 
and the keeping of open shops 7 A horse- 
dealer cannot maintain an action upon a 
contract for the sale and warrant of a 
horse, made by him on a Sunday ; Vermel 
V. Bidler, 6 B. & C. 408 ; although the 
eontract was made by an agent, and was 
entered into at the request of the party 
who takes the ol^eetion. Smith v. SparroWf 
4 Bing. 84. Where goods ha?iiig been 
bought on a Sunday, the buyer afterwards 
whilst the goods were in his possession 
promised to pay for them, it was held, 
that the seller was entitled to recover on 
a quantum miruit, WiUiomi v. Paul, 6 
Bing. 653. The hiring of a servant by a 
fonner on a Sunday is good, B, v. H^t^- 
immA, 7 B. & C. fi06 ; and see Beghie v. 
Levi, 1 C. & J. 180. The ob|ect of the 
Act was to prevent parties firom carrying 
on their trade and ordinary oecvfMtfiims 
and caUim(/i on a Sunday. 



94 



ASSUMPSIT : MONEY HAD AND RECEIVED. 



Illegal eon- the bankrupt's certHicate, which he actually did (b). So, where the defendant, 
sideration. having brought an action against the plaintiff, on the ground of an alleged 
usurious transaction between the plaintiff and A, B., procured money from 
the plaintiff to compromise the action, it was held that the plaintiff might 
recover the money, on the ground that the prohibition and penalties of the 
stat. 18 Eliz. 2, c. 5, s. 4, solely attached upon, and were confined to, the 
informer or plaintiff in the penal action, and did not attach upon or extend 
to the person compounded with ; and the distinction was taken as laid down 
by Lord Mansfield in the case of Smith v. Bromley (<*), that if the act itself 
be immoral, or a violation of the general laws of public policy, the party 
paying the money shall not be allowed to recover it ; but that in the case 
of other laws which are calculated for the protection of the subject against 
oppression, extortion and deceit, if such laws be violated, and the defendant 
take advantage of the plaintiff's situation or condition, then the plaintiff 
shall recover (rf ). 
Action by Where money is paid by the plaintiff to the defendant upon an iBegal 
*JP^^P' agreement^ to which both are parties^ and equally culpable, it may be reco- 
vered whilst the agreement remains executory^ but not afterwards, ii., in 
consideration of 210/., gave B. a bond for the payment of an annuity of 
100 guineas until the hop duties should amount to a certain sum, and it was 
held that B., who brought his action before that event happened, was enti- 
tled to recover, on the ground that the contract still remained executory («). 
So it was held where a sum of money had been paid to procure a place in 
the customs {f). So, where a prisoner in custody in Newgate, for clipping 
coin, gave a sum of money to a solicitor to procure his discharge {g). 

Where, however, money is paid by the plaintiff to the defendant, upon an 
agreement grossly immoral, it seems that it cannot be recovered, although 
the agreement remain executory : for in such case it is contrary to sound 
policy to yield the plaintiff any assistance. As where the money is paid as 
a consideration for the murder of a third person {h). It is however to be 
observed, that the distinction between malum in se and malum prohibitum has 
frequently been disapproved of (t) ; and if the doctrine is to prevail that 
the party ought to be allowed a loom pcemtenius, is it not reasonable that he 



cnmmifl. 



(b) Smith V. Bromley^ Doug. 696. 
Cockihott V. Bennett, 8 T. R. 763. Jack- 
eon v. Lonuu, 4 T. R. 166 ; 3 T. R. ^1. 
Leieetter v. Boee, 4 East, 473 ; B. N. P. 
133. The Stat 6 0. 2, c. 30, s. 1 1, formerly, 
and now the stat. 6 O. 4, c. 16, b. 125, 
vaeatet all securities given by the bank* 
mpt, or any person on his behalf, as the 
consideration for signing his certificate. 
See Nerot v. IFoltoce, 3T. R. 25. A cre- 
ditor executing a composition deed, tdkes 
bills from the debtor to the full amount ; 
the debtor may recover the surplus. Tur* 
ner v. HooUj 1 D. & R. 27. 

(c) Dong. 670, n. 

{d) WUUame v. Hedley, S East, 87& 
Browning v. Morrie, Cowp. 790. 

(e) Tappenden and others v. BandaU, 
2 B. & ?. 467. In this case the Court 
considered the distinction between execut- 
ed and executory contracts as completely 
established. See Sir J. Mansfield's obser- 
vations hi Aubert v. IFoZaft, 3 Tautft. 2S1. 



Buth V. WaUhj 4 Taunt. 960. WM v. 
Biihop, B. N. P. 16. 132. It seems, 
however, that the Courts do not consider 
wagers on the amount of duties to be iUe- 
gal or immoral, but refuse to enforce them, 
on aecount of the public inconvemence 
which might otherwise result. SHrlejf v. 
Sunbury, 2 B. & P. 130. 

(/) Walker v. Chapman, cited by 
BuUer, J. in JUnory ▼. Bourdieu, Doug. 
471. 

{g) Wimnmm v. Kxtekin, I Ld. Raym. 
S9. But see Norman v. Coie, 3 Esp. 253, 
where Lord SMoa is reported to have held, 
that a am of money placed in the hands oi 
the defendant, in order to procure a pardoa 
for one who was under sentence of death 
in Newgate, could not be recovered. 

{h) Per Heath, J. Tappenden v. Ban* 
dally 2 B. & P. 471. 

(t) Aubert v. Afozw, 2 B. A; P. 371. 
Cemnan v. Bryee^ 8 B. 4c A. 1 79. 



assumpsit: illegal coktract. 



96 



should be allowed and inducted to repent of his intention to perpetrate a great 
and h^nouB crimen as well as of his intention to commit a more tririal 
offence? 

In cases of illegal transactions, money may always be stopped whilst it Money in 
is in trangUu to the person who is to receive it (A). stakehol- 

Where the money has been paid to a mere depositary or stakeholder, the der, &c. 
plaintiff may recover it at any time before it is paid over, although the 
agreement be illegal and no longer executory. As, where a wager is deposited 
with a stakeholder on the event of a battle to be fought by the parties, and 
the battle be fought, either party may recover his deposit before it be paid 
OTer(/). So, where the plaintiff, in order to avoid a prosecution for a mis- 
demeanor, paid a sum of money to the defendant for the use of the poor, it 
was held that after notice not to pay the money over he might recover 
it(w). 

It is a general rule that an agent shall not be allowed to set up the title ^f ^^ 
(rfa third person against his principal («). *^^° 

Where tbe defendant, a broker, had received fropi the underwriters the 
amount of an illegal insurance, is was held that he could not set up the 
illegality of the transacton as a defence in an action by the assured (o). 
For having received money to the use of another, he cannot in conscience 
retain it, and no one is entitled to it but the plaintiff. So, where the defen- 
dants, who were carriers, received for the plaintiffs the price of a quantity 
of counterfeit halfpence, it was held that the plaintiff was entitled to recover, 
and the illegality of the transaction was considered as unimportant to the 
deeisioa of the question (p), since the plaintiff sought but to recover his own. 
But it is otherwise where the money has not been actually paid, but credit 
only has been given. An underwriter on an illegal insurance cannot recover 
the premium from the broker, though the broker has given the underwriter 
credit for it in their account ', no money having been actually received by 
the broker (9). 

In the case of Booth v. Hodgson (r). A., B, and C being partners in 
underwriting insurances^ which were underwritten in the name of A. alone ; 
C, one of the partners, and 2>., as the brokers of A.y B, and C, received 



{k) Per Ld. EUenborongh, C. J. in Edgar 
T. Powier, 3 East, 222. See the cases cited 
below. A premiom is in trantitu if not 
aetnally paid by the broker to the nnder- 
writer, idthovgh the former has given credit 
iiar it to the latter. Ibid, 

(0 Cotton V. Thurland, 5 T. R. 405. 
BUkan V. Kinfftman^ 1 B. Jfc A. 688. And 
Me Hovmm v. Httneoek, 8 T. R. 575. 
8mithw,SiekinorejATwnt.A74. Avbert 
T. WdUh^ 8 Tanat. VTI . Farmer v. Museell^ 
1R&P.296. Yide etianij Bate y. Cart' 
wrightf 7 Price, 540, which was the case of 
a wager on a foot-race. A stakeholder 
hsTlng paid over the money deposited, after 
the wager had been decMed against the 
pluntzfl^ who claimed the whole as winner ; 
U was held that the plaintiff might recover 
\mA his own deposit in an action for 
ttoaeyfaad and receited, against the stake* 
holder; the Ooort dlstiBguishing hetween 
aetioflsbyone party to an illegal contract 
anaiost the other, and those against the 
si^eholder paying over witlxmt authority. 



and in opposition to his desire. Hattehw 
r.JaeJwmj 8 B. & C. 221, and 2 M. & Ry. 
209 ; and see Hodton v. Terril, 1 C. & M. 
797. Vide iT{fra, tit. Wagek. 

(m) Taylor v. Lendey, 9 East, 40. 

(n) White v. BartleU, 9 Bing. 378. 
Nicholson v. KnowleSf 5 Mad. 47. Crosi- 
hey ▼. MUU, 1 C. M. & R. 298. An aeent 
receiving money to be paid over to a third 
person, ia accotmtable to his principal until 
he has entered into some binding eng^e- 
ment to hold the money to the use of such 
third person. See WHliamt v. JSverett, 
14 East, 582; supra, 81. Wedlake v. 
Hurley f 1 C. & J. 83. Baron v. HuS' 
hand, 4 B. & Ad. 612; and tit. Appro- 

PEIATION. 

(0) Tenant v. BHiott, 1 B. & P. 8. The 
case was distinguished from that of a stake- 
holder. 

(p) Farmer v. Russell, 1 B. & P. 296. 

{q) Edgar v. FowleTy 3 East, 222. 

(r) 6 T. R. 405. 



96 



assumpsit: money had and rbceivsd. 



Illegal con- 
tract. — 
Receipt bj 
^n agent. 



niegal 
executed 
conildeim- 
tion. 



premiums of insurance to their use, and it was held that A, was not entitled 
to recover the amount of those premiums from C and D, as money had and 
received to his use. Here it is to be observed, that the party could not 
recover except through the medium of the iUegal transaction, and the case 
differs from that of money paid to a mere agent of the phdntiff, where the 
illegality of the transaction is out of question. 

In the case oSSulUvanT, Qreaoe${8)^ the plaintiff and one Bristcwy being 
partners in an insurance underwritten by the plaintiff in his own name, a 
loss happened, and the plaintiff paid the whole to the defendant, a broker ; 
Brigtow afterwards paid his moiety of the loss to the broker, and then the 
plaintiff brought his acti<m against the broker to recover half of what he had 
paid ; and Lord Kenyon held, that since the plaintiff came to enforce an 
illegal contract, he could not recover (t). This case may seem at first view 
to be inconsistent with that of Tenant v. ElUott (u) ; but it appears to be dis- 
tinguishable from it ; for there the ground of the decision was, that the agent 
of the plaintiff having received money for his use, the illegality was out of 
the question ; it was the plaintiff's own money ; but in the latter case the 
plaintiff sought to recover money which he had paid under an executed 
illegal agreement; before Bristow^e payment of the money, the plaintiff, for 
the reason just stated, was not entitled to recover any part of it ; and when 
Brigtow paid the money he did not actually pay it to the plaintiff's use, as 
in the case of Tenant v. ElUott^ but in discharge of his own share in an 
illegal contract ; and the law will not raise an implied assumpsit in favour 
of a particepe crindms. 

Money paid over to a party cannot be recovered after the event has 
happened; for where the parties are in pari deUcto, potior est conditio 
po$tidentu{x). And therefore a plaintiff cannot recover from the under- 
writer the premium of a re-assurance void by statute {y) after capture (x). 
So, where an insurance was made on a ship belonging to a British subject, 
without interest (a), it was held that the assured could not recover the 
premium after the ship had arrived st^e (b). And in such cases it is presumed 
that all parties know the law, and the municipal laws of this country are as 
binding in that respect upon foreigners as upon natives (c). 

Where, however, an insurance has been effected in ignorance of particular 



(i) Park on Ins. 8. 

{t) Lord Kenyon afterwards mentioned 
the case to the other Judges of the Court 
of K. B., who approTed of It ; and the doc- 
trine wtLB reoognised and approved of by 
the Court of C. P. in the case of MiteheU 
and othtn v. Coeibwm, 2 H. B. 379. 

(u) 1 B. & P. 3, and nqtra, 95. See 
Mr. Selwyn's qussre, 1 Selw. N. P. 4th od* 
90. 

(x) There to no case to be found where 
money has been paid by one of two parties 
to another, on an illegal contract, both being 
partieept erimimi; an action has been 
maintained to recover it back again. Per 
Lord Kenyon, in How$on v. Hancock, 
8 T. R. 677. The case of Za eau tmde v. 
WMte, 7 T. R. 635, where money paid on 
an iUegal wager was allowed to be drawn 
after the event had taken place, has been 
considered as completely over-ruled by 



Hototon V. Hancock, 8 T. R. 575, where 
the contrary was decided. See Vandytk 
V. Hewitt, 1 East, 96; WiUiami v. 
Headly, 8 East, 382; Avbert v. TFoiiAyd 
Taunt. 284; 3foreA v. ilM, 3 B. A P. 35 ; 
nistlewood v. Craycrqft, 1 M. & 8.500; 
Stoici V. Tufitchen, 8 Taunt 492; Bayn- 
tun T. Cattle, 1 Mo. 4c R. 265. 

(y) 19 Geo. 2, c 37. 

(z) Andri v. Fletcher, 3 T. R. 266. 
WM V. Biahop, B. N. P. 132. 

(a) Which to illegal by 19 Geo. 2,V 37. 

(6) Lowrp v. BownUeu, Doug. 467. See 
also Luifbock v. Pott$, 7 East, 449. 

(c) Andri v. Fletcher^ 3 T. R. 266. 
Morek V. Abel, 3 B. & P. 36. Vandjfck v. 
Hewitt, 1 East, 96 ; where the money was 
paid on an illegal insurance to cover a 
trading with the enemy, and the plaintiff 
deotored on the policy as well as on the 
money counts. 



assumpsit: account stated. 



07 



facts which avoid the policy, it has been held that the premium may be 
recoyered (d). 

So, where money had been paid by an illegal insurer of lottery tickets, in 
coDseqnenee of having insured the defendant's tickets, it was held that the 
plaintifr eoold not recover, because the contract was executed ; and the 
distinction was taken between that case and that of a plaintiff who seeks to 
recover premiums paid for such illegal insurances (e). 

lo some instances this form of action cannot be maintained, even though Notice of 
the plaintiff be entitled to receive the money, without proof of notice of ^^^^°- 
iction (/), according to the special provision of some statute. 

The count, upon an account ttated, is supported by evidence of an acknow- Account 
iedgment on the part of the defendant of money duefjr) to the plaintiff ("A), 
upon an aecouni between them (t). A qualified adcnowledgment is not 



stated. 



(d) Rentig y. Stamforth, I Starkie'sC. 
S54; 5 M. & 8. 132. Ocm y. Bructy 
UEtft,S26. 

(e) Brmoning v. Morrity Cowp. 790. 
(/) Thus the action does not lie against 

an excise officer in respect of dntics re- 
reived after the repeal of the Act which 
imposed them, without notice, according to 
the 23 G. 3, c. 70, s. 30. For this Act pro- 
tecto them in all eases where intending to 
act within the atatnte they exceed it 
Grtemomf y. Hnrdy 4 T. R. 656. See also 
Widlaee v. SmUh^ 5 East, 1 14. But where 
the defendants made an excessive charge 

00 a distress for arrears of taxes, it was 
beld that the defendants in an action of 
amtmptit were not entitled to notice, for 
the set was not done colore qffieik Uftk- 
phelby T. Maclean, 1 6. & A. 42 ; and 
tfqfra, 66, note (t), Ind. tit. Noticb. 

{g) Tueher ▼. Barrow, 7 B. & C. 023. 
A ineie acknowledgment of a debt being 
doe, and a promise to pay it, but no 
amoant specified, is insufficient to entitle 
the plaintiff eyen to nominal damages on 
an aeeonnt stated. Bemoiconi t. ArgyU^ 

1 M. & M. 183, and 3 C. & P. 29. Unless 
the amomit be proyed aUunde, Dickton 
T. Doceridge, 2 CicV. 109. Leeton v. 
^mi^A, 4 N. A; H. 804. The plaintiff sued 
•a executrix, and proved that tiie defend- 
ant being applied to by her for payment of 
interest, stated, that she would hrfng her 
Mne on the ^UowiDg Bunday ; it was 
M, that atthoogh there was an adttts- 
noo tbatsonethlng waadae, yet that as it 
did not appear wliat the nature of the 
debt was, nor whether it was due te 
the plaintiff as executrix, or in her own 
Hght, Dor if it was one for which atiwnp' 
^ would lie, the plaintiff was not en- 
titled to recoyer eyen nominal damages. 
Grwn T. Vaviei, 4 B. & C. 235; and see 
Sail y. Auty, 2 B. ic B. 101. The plain- 
tijf most show some precise sum, per Tin- 
dal, a J., Kirton v. Wood, 1 Moo. k R. 
253. Where at a meeting of the plaintiff 
*Bd defendant to settle an accoont, the 
clerk of tlie former made the entries into 
<ne book which the defendant copied into 

VOL. II. 



another, bat no admission was made as to 
the correctness of the items ; and the de- 
fendant adteittsed tiiat the balance against 
him, as stated by the clerk^ was correct ; 
but added, that as he had done many 
things, there would not be much, if any 
thing, between them; held, that the plain- 
tiff's book would not bind the defendant 
so as to require its production, or its ati- 
sence to be accounted for ; held also, that 
the defendant's admission was eyidence of 
something due on the account stated. 
Rigby v. J^ryt, 7 Dowl. (P. C.) 6C1. 
Where the decUratlon contained counts, 
on an instrument in the form of a promis- 
sory note, payable at *' nine years after date, 
proyided 1). AT. did not return to Eng- 
land, or his death be certified in the mean 
time," with common counts for money 
lent, and upon an account stated ; and the 
only evidence wasof handwriting, and that 
1>. M. had neyer been heard of for 25 
years; held that the pUlntiff, failing to 
proye the consideration stated In those 
counts to haye been glyen for the promise, 
could not recoyer apon the latter counts ; 
the instrument not raising any presump- 
tion of money lent ; on the contrary, the 
ooDtlngency on which it was pajrable rais- 
ing raUier a difibrent presumption. Mor- 
ffan y. Jones, 1 Cr. & J. 162; and 1 1 yrw. 
21. 

(h) Where a plaintiff could not prove 
his title as indorsee of a bill by evidence 
of an indorsement, it was held that letters 
written by the defendant in answer to ap- 
plications, in which the defendant did not 
admit any liability to the plaintiff or to any 
particular holder, bat only a liability on 
the bill to the holder, were not sufficic^nt 
eyidence of title to recover. Jardine y. 
Payne, IB.k Ad. 663. 

(t) A, agrees with S, to pnrchase a 
house, and take the fixtures at a valua- 
tion; an inventory and valuation are 
made, and the gross amount stated at the 
foot ; A. takes possession and enjoys, and 
pays part of the amount. In an action for 
goods sold and delivered, and on an or- 
count stated, B, is entitled to recover the 

H 



ud 



assumpsit: account STATEXy. 



sufficient (A) ; neither is a casual acknowledgment, made to a mere 
stranger (I) ; nor one made after action brought, without proof of previous 
dealings Cm). Where accounts are submitted to an arbitrator, not hy boiid, 
his award is evidence on this count (n). A promissory note given by the 
defendant to the plaintiff is evidence under this count, even where Hie note 
cannot be given in evidence under a special count, because of variance (0). 
Tt is unnecessary to prove the items of which the account consists, but 
sufficient to prove the account stated (p) ; for the stating of the account is 
the consideration of the promise (9)>; and therefore an action upon this 
count cannot be maintained against an infant (r) ; for since an infknt cannot 
state an* account, the consideration fails. 

It is sufficient, although the account be stated of that which is due to the 
plaintiff only, without making deduction for any counter-claim by the 
defendant («). An acknowledgment of a single item in an account is suffi- 
dent to support the count (f). It is also sufficient that the account be 



remainder on tiie account stated. Salmon 
V. Watton, 4 Moore, 73. Upon a verbal 
agreement for the sale of growing turnips, 
part of them being drawn, the purchaser 
promised to pay the amount before he 
drew any more, but which he did not do ; 
held that that sum was recoverable on the 
account stated. Pifiehan v ChUcott, 3 C. 
&P. 236. Where the defendant, an in- 
comhig tenant, agreed to pay the plaintiff, 
the offgoing tenant, for all crops sown tie- 
fore a certain day, and the defendant, la 
answer to a demand of 40/., tendered 17 /.; 
held that it did not amount to an acknow- 
ledgment of debt to support an account 
stated, but was to he considered as a mere 
offer to purchase peace. Wayman v. Hil- 
Uard, 7 Bing. 101. 

(k) Evam V. VtrUy^ R. & M. 230. As 
where the defendant said, ^ I would have 
paid you, if you had not removed the 
grates." And see Wayman v. HUliard, 
4 M. & P.e29; 7 Bkig.lOl, S. C; and 
sipra, note (i). 

(0 Buehan v. Smith, 1 Ad. & Ell. 488. 

(m) Allm V. Cook, 2 Dowl. P. C. 546. 
The ofier of a cognovit after actionbrenght, 
isootevidenceof an account stated. Spen-' 
Mr V. Farry, 3 Ad.& £11. 331. 

(n) Keen v. Batshare, 1 £sp. C. 194. 

(o) See tit. Bills of Exchakob. In 
Leaper v. Tatton, ISEast, 420, Bayley, J. 
held, that an acknowledgment by the de- 
fendant of his having accepted a bill of 
exchange, and that he had not paid it^ 
created a debt, and was evidence on the 
account stated; although the defendant, 
when he acknowledged the acceptance, 
said that he had been liable, but was not 
liable then, because the bill was out of 
date. See the observations of Wood, B. in 
Partridge Sf Ux v. Court, 6 Price, 412. 
Where a memorandum had been given to 
ihe plaintiff on a receipt stamped, in the 
lerms '* received of E^ A, 150/., which 



we promise to pay,*^&c., and was not re- 
ceivable in evidence for want of a pro- 
missory-note stamp, and there was no 
count for goods sold, which had been the 
consideration, but the defendant had ac- 
knowledged that be owed the testatrix 
150 /., without referring to the note; held, 
that the plaintiff might recover on the 
count for an account stated. Aihby v. 
AiKby, 3 M. & P. 186. A phuntiff may 
recover on an I. O. U. upon the, account 
stated, although it may have been given 
as the consideration of an agreement not 
dcchired upon. Payne r, Jenkins, 4 C. 
Sc P. 324. A promissory note not duly 
stamped is not evidence by way of ad- 
mission. Oreen v. Baviet^ 4 B. & C. 235. 
lYeither is a note payable upon a contin- 
gency. Morgan s^ Jones, 1 Cki. 163. 
Where a promissory note by the defendant 
to the plaintiff is admissible, it is evidence 
of an account stated at the time of the 
dlftte, and shows that the cause of action 
did not accrue till the time of paymenu 
Whattey v. WiUiams, 1 M. & W. 633. 

(p) BartUtt V. Emery, Hil. 2 G. 2, B. 
R. 1 T. R. 42, n. 

(9) B. N. P. 129. May v. King, Ca. 
K. B. 537^ where tha evidence was, that 
the parties had come to an acconot, and 
that 5/. was due on the balance; and 
held, that the plahitiff was entitled to re- 
cover on that aoeonnt. Per Bnller, J> 
Truman v. Hunt, 1 T. R. 40. 

(r) Truman v. Hurst, 1 T. K. 40. In 
Ingledew v. Douglas, 2 Starkie, C. 36^ 
Lord Ellenborough held, that an accoont 
stated by an infant was not evidence after 
he had attained his age, even to show that 
he had had the necessaries mentioned iu 
tlie account. 

(«) Sluart V. Rowland, 1 Show. 21^- 
(/) HigkmoreY, Primrose, 6 M. * S. 
65. 



assumpsit: account stated. 



99 



stated with the wife of the plaintiff (u). An entry in a bankrupt's examina- 
tion of a sum due to A, is evidence of an account stated between themi 
and snfficient to take case out of Statute of Limitations (x). 

An account alters the nature of the debt (y) ; and therefore, if a tenant, 
being in arrear of rent, settle an accoimt with his landlord, and promise to 
pay him, oMumpsU lies {z). And it seems to be immaterial in which way 
the debt arose, if there be an account stated, and an express undertaking 
to pay the balance (a). The action lies, even although the items of account 
were secured by a specialty (6). 

Thus, after an account has been liquidated between two partners, assumpsit 
will lie for the balance upon an account stated, and a promise to pay, 
although the partnership deed contains a coyenant between the parties to 
account at certain times (e); for if a partnership be dissoWed, and an 
teoount settled, it is a good consideration for a promise to pay (d). But in 
general, so long as any partnership concerns remain unadjusted, no action 
can be maintained by one partner against another (6). 

Although it appear that there was a memorandum of agreement for the 
sale of growing trees, but neither stamped nor signed, an admission of the 
som due, after the trees have been cut and carried away, is evidence on 
this count (/* ). 



(tt) 1 Show. 315; B. N. P. 189. 

(x) JSSctev. iVoftef, 1 M.ftR.d69. As 
smoantmg to an absolute admission of an 
exttting debt. Per Tindal, L. C. J. ; see 
KnowUt V. Mitehell, 18 East, 249 ; Brig- 
itock V. Stnithy 1 C. & M. 483; Kennett 
T. MUbank, 8 Bing. 88. But where a 
party examined before Commissiooers of 
Btnkmpt, admitted tliat he had received a 
nm of money on accomit of the bankrupt 
after an act of banlcraptcy, but not that it 
HUB a subsisting debt, it was held to be 
inaafBdent. 

(y) Vent. 968; Allen, 78; 8 Lev. 110. 

(z) BolL Ab. 9; Bro. Account, 81; 
Say. 211; 2Keb.8ia 

(a) In Foster v. AUanson, 2 T. R. 479, 
where the partnership had been dissolved, 
and an aceonnt stated, wlilch the defendant 
jmrniMBd to pay, Boiler, J. distinguished 
the ease Irom that of J>rue v. Thames 
Aneyn, 72, on the ground of the express 
promise. In that case a feme sole being 
inddited to tiie pl^ntiff for goods, married, 
aad ahe and her huaband stated an account 
with the plaintiff, which the husband pro- 
mised to pay, and it was held that the wife 
mast be Joined. 

(h) Maratria v. Z«oy,2 T. R. 483. 

(e) Moravia v. Zevy, 2 T. B. 488, (n). 

(d) Foster v. AUanson, 2 T. R. 479. 
And a judgment in that action might be 
pleaded in bar of an action on the covenant, 
per Buller, J. 2 T. R.488; and see Brimley 
t. Criiq^ 7 C. & P. 709. It seems, how- 
ever, that as between partners such an 
action cannot be maintained but on a final 
balance. Fromoni v. Cop^nd, 2 Bing. 



170. Goddard v. Hodges, 1 C. & M. 
37; and see tit. Partners; and Wiison 
V. Cutting, 10 Bing. 436. It has been 
questioned whether an express promise be 
not necessary. But see Clark v. Olennie, 
8 Starkie's C. 10. Henley v. Soper, 2 
M. & R. 166; 8 B. & C. 20, 8. C. ; Rack- 
straw T. Imber, Holfs C. 868 ; and the 
cases above referred to, and tit. Part- 
it brs. 

(e) Foster v. Allanson 2 T. R. 479. 
Bohson V. Curtis, 1 Starkie's N. P. G. 78. 
Plaintiff and defendant agree to buy 
goods on tlieir joint account, tlie defend- 
ant agreeing to furnish the plaintiff with 
lialf &B amount in time for payment, the 
plaintiff having paid the whole, may re- 
cover the moiety, although an account is 
still to be talcen between them as part- 
ners, on the disposal of the whole stock. 
Venning v. Leekie, 18 East, 7. Where A. 
a partner with B. 8l C, supplied his own 
money to B. fbr the benefit of the firm, on 
a promise by B. to repay him out of pro- 
ceeds already received for goods of the 
firm ; it was held that A. might recover 
the amount from B, as money had and re- 
ceived to his use. Cqffer v. Brian, 8 
BUig.54. 

(/) Teale v. AtUy, 2 B. & B. 99. 
Knowles v. Mitchell, 1 3 East, 249 ; secus, 
if no precise sum be admitted. IHd. Soon 
an agreement for purchase of furniture 
and fixtures, the inventory containing a 
mixed valuation of goods ^uA fixtures, the 
plaintiff may recover the value on this 
count. Salmon v. Waison, 4 Moore, 73. 
Bat not on the count for goods sold and de^ 
livered, semble, Ibid. And see Lee v. His* 
don, 7 Taunt. 188. 

H 2 



100 



assumpsit: breach. 



Parties. 



Variance. 



Breach. 



W^here the plaintiff had sold a ship to the defendant who became the sole 
registered owner, and afterwards, by way of security to the plaintiff for 
advances for the ship, executed a bond conditioned for making a bill of 
sale to the plaintiff, which he failed to do, and subsequently sold the ship 
to a third person ; and, on being applied to by the plaintiff, promised to 
render to him an account of the produce of the sale and disbursements ; it 
was held to be eyidence that he had sold the ship on account of the 
plaintiff, and an admission of his liability to pay oyer the balance in his 
hands (^). 

The plaintiff may recx>ver on an account stated by the defendant with 
the plaintiff's wife ; but not on an account stated by the defendant's wife, 
unless her agency be proyed (A). 

Where an account was stated between the defendant and his wife with 
the plaintiff, of an account due from the wife whilst sole, to the plaintiff, 
for goods sold, it was held that the action could not be maintained against 
the husband alone (i). So, the plaintiff cannot recover against the defendant 
upon an account stated by him partly as administrator, and partly in his 
own private capacity (A). 

Where the defendant dealt with B,y and then with B, and C, his partner, 
and an account was settled between the defendant and jB. and C, which 
included both the accounts, it was held that B. and C. might maintain an 
action on this account (/)• 

And the plaintiff may recover on an account stated with the defendant, 
including debts due from the defendant alone, and from the defendant and 
a deceased partner jcnntly (m). . 

An account stated is not so conclusive in its effect as to exclude evidence 
of errors which have crept into the account (n). The accounting with the 
plaintiff in a particular character, is an admission of the character (o). 

A variance in evidence between the amount of the balance proved and 
that averred in the declaration, is now held to be immaterial (/>). 

It seems that under this count, one account only is admissible (q}. 

Interest is not recoverable in the absence of a contract, express or implied, 
for the payment of interest on the balance (r). 

An omission to prove the whole breach, as alleged in the declaration, is 
not material. The plaintiff in an action upon a policy of insurance may 
allege a total loss, and recover for a partial or average loss («). 

Where the breach alleged that the defendant had treated the estate eon- 



(g) Fronting v. Hammond^ 1 Qow's 
C. 41. 

{h) B. N. P. 129. 

(i) Drue v. Thomet Alleyn, 73. Bnt 
Buller, J. in Foiter v. AUanton, 3 T. R. 
488, intimated tliat it would have been 
otherwise if the defendant had expressly 
promised to pay. 

(A) Herrenden v. Falmer, Hob. 88. 

(0 Moor V. HUly Sitt. Qaildball after 
Easter, 1785; Peake's Ey 257, 3d edit. 
Qu. whether there was not an express 
promise in this case to transfer the credit 
to the new firm, and pay the consolidated 
account ? And see Oough y,I>avii,A Price, 
314 ; JDavid v. SUis, 6 B. & C. 196. 



(m) Richardt v. Heaiher, 1 B. & A.39. 

(n) Formerly it was eooBidered to be 
more eonclosive. See Ld. Mansfield's ob- 
seryations in Truman y. Hunt, 1 T. R* 
42. But see Roper v. Holland, S Ad. k 
£11. 22. S. C. 4 N. & M. 668. 

(o) Feacock v. Harris, 10 East, 104. 

(p) Thompson ▼. Spencer, B- N. P. 139. 

{q) Per Littledale, J. Kemudif r, 
WUhert, 3 B. & Ad. 769. 

(r) Nichol v. Thonqtton, 1 Camp. 53. 
J>aweiY,Finner,4S6,n. Moore T.Vougk- 
ton, 1 Starkie's C. 487. See tit Intbebst. 

(s) Oardinery. Croatdale, Bnrr. 905; 
and see the cases, 3 Will. Sannd. 805; BL 
198. 



'> 



■r.% 



/I 



I, 



\ 






ASSUMPSIT : DEFENDANT S PROOFS* 



101 



trtLry to good husbandry and the coslom of the countryi it was held to be 
supported by showing that the defendant had treated it contrary to the 
preTalent coarse of good husbandry in that neighbourhood ; as by tilling 
half his farm at once, when no other farmer tilled more than one third ; 
and that it was not necessary to prove any precise defii^ite custom or usage 
in respect to the quantity tilled (t). 

Id an action against the defendant, as wharfinger, for not procuring a suf- 
ferance for goods, in consequence whereof the goods were seized as forfeited 
to the king, it appeared that it was the defendant's duty, as wharfinger, to 
obtain a sufferance from the custom-house for the shipping of the goods, 
which he had not done, and in consequence of which the right of seizure 
had attached. It was also proved that the goods had been seized by a 
custom-house ofiicer, and sold in the usual manner. It was objected that 
the record of a sentence of condemnation ought to be proved, but it was 
held that the proof was sufficient («). 

Previous to the late rules, the defendant, by the plea of non-€t$sumpnt, Proof by 
might have put the plaintiff to the proof of his whole case, and in answer defendant 
he might in general have adduced any evidence which disproved the case sampslL 
set up by the plaintiff, and showed that at the time when the action was 
brought the plaintiff had no cause of actioui or at least no right to maintain 
this form or action. 

The evidence admissible under the plea of non assumpnt is much limited 
by the following rules of Hil. T., 4 W. 4. 

1. In all actions otassunqmiy except on bills of exchange and promissory Defence 
notes, the plea of non-€U9uinpsU shall operate only as a denial in fact (v) of ^^^^^ the 
the express contract or promise alleged, or of the matters of fact from 
vhich the contract or promise alleged may be implied by law (to). 



(0 4 East, 154. 

(u) Baker ▼. lAseoe, 7 T. B. 171. 

(r) And, therefore, in the case of an ez« 
press contract the plea does not operate 
u a denial of the alleged consideration, 
^'here the declaration dleged, that in con- 
udentlon of receiving a horse and 2/., tlie 
<iefeDdant agreed to sell a horse on war- 
naty to the plaintiff; it was held that the 
plaintiff, oa non atBun^fuU pleaded, was 
Dot boond to prove the delivery of the horse 
tad 32. Smith v. Parsmtj 8C. & P. 100. 
And where the plaintiff alleged that, as 
athof , he had a right to the nrasic and 
poetry of an opera, and that hi consideni- 
tioD of the premises, and tliat the plaintiff 
voold sell him such right, the defendant 
mdertook to hny it; Thidal, C.J., held, 
that under a simUar plea it was not com- 
P«teot to the defendant to contend, either 
tbat the plaintiff was not the author, or 
^ not the right, or did not sell it to the 
<leraidant. J)e Pinna v. Polhill, 8 C. 
^ P. 78. And in Panenger v. BrookeMf 
1 Bing. IV. C. 687, it was held, that the 
MeodJuit could not prove want of con- 
^'ioation as a defence under this plea. 
^ 9ee the observations ot Parke, B. on 
%i case in Benmon v. Davison, 3 M. & 



V7. 1. 0. In auwnptit on a guarantee for 
goods supplied to A., the plea admits tlie 
supply, and the fact need not be proved, 
except to show the amount of damages. 
Taylor v. HUary 7 C. & P. SO. See Gib- 
son V. Harris, 8 C. & P. 370. But it iB 
clear that the plea does not admit the truth 
of any immaterial averment in the declare- 
tion. When the declaration on a special 
agreement to carry goods safely in a 
vessel lying in a certain river, alleged that 
they were to be carried by the defendants 
as otoners of the said vessel ; it was held 
that tills plea did not admit the ownership, 
Bennion v. Damson, 3 M. & W. 10. 

(w) The defendant may, under the ge- 
neral issue, show that the action was 
brought on a partnership transaction be- 
tween himself and the pliUntiff. Pearson v. 
SheUm, 1 M. & W. 604. Worrel v. Gray- 
son, 1 M. & W. 168. So in an action by 
one joUit*owner of a ship against another 
for contribution to recover a proportion of 
the damages paid by the plaintiff to a third 
party for the value of goods sent by the 
ship and lost, the defendant may show that 
the goods were lost, and damages incurrefl, 
through the plalntiff*tt own misconduct. 
Gregory v. HartneU, 1 M. & W. 188. la 
H 3 



102 



Assumpsit : defendant's prooph. 



Defence 
under the 
new rules. 



Denial of 
the con- 
tract. 



Ex. gr. in an action on a warranty, the plea will operate as a denial of the 
fact of the warranty haying been given upon the alleged consideration, but 
not of the breach ; and in an action on a policy of insurance, of the sub- 
scription to the alleged policy by the defendant, but not of the interest, of 
the commencement of the risk of the loss, or of the alleged compliance with 
warranties. Bills of exchange, bills or notes by way of accommodation, 
set-off, mutual credit, unseaworthiness, misrepresentation, concealment, 
deviation, and various other defences must be pleaded. 

In every species of astumpsity all matters in confession or avoidance, 
including not only those by way of discharge, but those which show the 
transaction to be either void or voidable in point of law, on the ground of 
fraud or otherwise, shall be specially pleaded ; ex, gr, infancy, coverture, 
release, payment, performance, illegality of consideration, either by statute 
or common law, drawing, indorsing, accepting, &c. bills or notes by way of 
accommodation, set-off, mutual credit, unseaworthiness, misrepresentation, 
concealment, deviation, and various other defences must be pleaded. 

Subject to these rules, which regulate the form of the plea by which the 
defence to the action is properly to be raised, the defendant may insist that 
the agreement was under hand and seal, for then the form of action is mis- 
taken {x) : That the action has not been brought by the proper parties, 
the promise having been made to the plaintiffs jointly with others {y) ; or 
that the defendant was a partner with the plaintiff (z) : That the plaintiff 
who sues as a feme sole was married when the contract was made (a) : That 
one of the defendants did not promise jointly with the rest : That the action 
was conunenced before the cause of action arose {h). 

He may controvert the promise in fact by showing that none such was 
ever made ; or if in fact made, may avoid it in point of law, by proof that 
it was obtained by duress, or whilst the party was in a state of intoxica- 



an action for work and labour, be may 
show that the work was done under a spe- 
cial contract, on which nothing is due. 
Janet v. Nanney, 1 M. & W. S33. And 
see Grountell v. Lamb, 1 M. & W. 352 ; 
IHekm y.NeaU, 1 M. & W. 656. By the 
express provision of the statute 55 Q. 3, 
c. 194, the plaintiff in an action on an apo- 
thecary's bill must, under this plea, prove 
his certificate, or that he was in practice 
before August 5, 1815. Wagttaffit v. 
Hhiurpe, 3 M. & W. 521 ; and see tit. Apo- 
THECABT. It has been held at Nisi Prius, 
that in an action for goods sold and deli- 
vered, the ddendant under this plea could 
not prove that the goods were of no value. 
i2<#ey V. 5ntaA,6C. &P.662. Itseems, 
however, to be impossible to imply a con- 
tract to pay anyUilng for that which is 
of no value. On a quantum meruit for 
service rendered, it has been held that the 
defendant, under the general issue, may 
show the worthlessnese of the alleged ser- 
vice. The defendant, under the plea of 
turn attumptitf may show that the goods did 
not correspond with the warranty. Dicken 
V. Neale, 1 M. & W. 556. Grountell v. 
Lamb, 1 M. & \V. 352. See tit. Vendor 
^MB Vrnbeb. 



(x) GUb. Law of Ev. 183; Cro. J. 600. 
608 ; Hutt. 34 ; it^ra, 78, (y). Where 
the plaintiff bad contracted by deed to 
perform certain works, and for extra works 
at prices to be fixed by a third party, who 
fraudulently awarded that nothing was due 
in respect thereof; held that the pUuntiff 
could not rgect the deed upon the ground 
of fraud, and recover in assumpsit, as on a 
simple oontiBct; the defendant having paid 
into court a sum upon certain counts, held 
that it could only be applied to the sums 
which were recoverable nnder those counts 
on which it was paid in. ChunhiU v. 
Day, 3 M. & Ry. 71. 

(y) Gilb.LawofEv. 189; Tri. per Pais, 
187 ; B. N. P. 152 ; on the ground of vari- 
ance. 

(2) Checq} v. Cromond, 4 B. dc A. 663. 
See Waugh v. Carver, 2 H. B. 235. Sach 
evidence would, it seems, be admissible 
under the general issue. Warrel v. Gray* 
son, 1 M. & W. 166. Pearton v. SheUoHf 
I M.4cW.604. 

(a) 3 Camp. 438. 

(fr) Ld. Raym. 1240. 



ASSUMPSIT : DEFENDANT S FROOFS. 



108 



tion, or by proof of infancy (c), coverture («/), lunacy (e), illegality {f) or 
fraud (^). 

Or that a condition precedent was not performed {h) ; or he may show that Discharge 
the promise has been disoharged by the plaintiff before breach (t), or by a ^'^ ^^ 
subsequent contract inconsistent with the former. Thus if A, promise to 
marry JB. within three months, and it is afterwards agreed that he shall 
marry her in half a year, this will discharge the former promise ; for by 
tskiog the latter promise of a longer time, the parties must be supposed to 
intend to discharge the former, for otherwise the latter could have no intent 
at all (A). 

Or that it had been discharged by accord and satisfaction (J) ; or by a 



(c) Qilb.lAw of Ev. 186; 2 Lev. 144^ 
Tn. per Pais, 398; Ld. Baym. 389 ; Salk. 
S79; a N. P. l&SL Vide iii/ni, tit In- 

{£) (xilb. Law of Sv. 183. Cmeley ▼. 
RobertKm cmd Mary kU wife, 3 Cunp. 
438; where it was proved in bar, that 
when the goods were supplied to the d»' 
feudant Jfary, she was the wife of one 
Gilleyy who waa still living. Vide i/^fira, 

HUSBAITD AND WiVB. 

(e) 6Ub. C. P. Go. It is a good defence 
that the defendant at the time of the oon» 
tract was of unsound mind, and that the 
plaintiff took advantage of the drcum- 
ituce to impose upon him. Browne v. 
Joddrdl, M. & M. 105. Long v. Baker, 
lb. lOa Sentance v. Pooie, 3 C. & P. 1. 
Hut Imiacy is no defence to an implied 
promiie for necessaries. Baxter v. Lord 
Parttmouth, 5 B. & C. 170. 

(/) The defence must be specially 
plMded. Lord Lyndhurst, in Colbum v. 
Patmore, obsenres, '* I know of no case in 
which a person who has committed an act 
deemed by the law to be criminal, has l>een 
ptrmiUed to recover compensation against 
a person who baa acted jointly with liim in 
the commiaslon of a crime." Vide supra 
sod tf^ra, tit. YBNDoa jlvd Vbvdbb. 
Bendy v. Bignoldj 5 B. & A. 635. Sie- 
phau V. BoUiuon, 2 C. & J. 209. A pro- 
nu4e to indemnify the plaintiff, in consi- 
deration of the plaintiff having pobliahed 
a libel and defended an action brought 
against him, ia void. Stockdale v. Rosier j 
2 Biag. N. C. 634. Money expended for 
the purposes of an unlicensed theatre can- 
not be recovered against one at whose re- 
qnest the money was expended, and who 
participated in the profita. De Begnis v. 
^rndttead, 10 Bing. 107. The proprietor 
of a newspaper cannot, before the filing 
of the affidavit required by the statute, 
recover on a contract for the printing of 
the paper. Houtton v. Millt, 1 M. & B. 
325. And see Pqplett v. Stockdale, B. & 
M. 337. Coo^ef v. Hatton, 3 Starkie's C. 
61. So as to money lent for the purpose 
of playing at an illegal game. M*Kvnnett 
V. Rdbintan, 3 M. & \V. 434. See also 
<^ium V. Bryce, 3 B. & A. 179, as to 
money advanced for settling Illegal stock- 



jobbing transactions. Money advanced to 
an agent to be expended in illegal disburse- 
ments, as {semJMe) paying the travelling 
expenses of voters, cannot be recovered. 
Bayntun v. Cattley 1 M. & B. 265. A 
broker cannot, unless duly licensed accord* 
ing to the stat 6 Anne, c. 16, maintain an 
action for work and labour for buying and 
selling stock. Cope v. Rowlands, 2 M. Jc 
M. 140. 

{g) Campbell y. Fleming, 1 Ad. Sl Ell. 40. 
As in consideration of puffing at an auction. 
Icely V. Grew, 6 C & P. 671. And see 
HUl V, Grey, 1 gtarkie's C. 434. Boa* 
U)ell V. Christie, Cowp. 395. Crowder \t 
Austen, 3 Bing. 368. Wheeler v. Collier^ 
M. & M. 126; and if\fra,Xit. Fraud, and 
Vendor and Vendee. This defence 
must be specially pleaded. 

(Ji) Supra, but he cannot show that the 
condition was not performed with intent 
to insist on the promise. Williams v. 
Cdmardine, 4 B. & Ad. 621 . 

(t) And this may be proved by parol 
agreement; but after a breach, it cannot 
be discharged by any new agreement with- 
out a deed, unless it operate in satisfaction. 
B. N. P. 152 ; 2 Lev. 144 ; 1 Mod. 259 ; 
Ca. K. B 518. 

{k) Qilb. Law of £v, 193; Tri.per Pais, 
402. But a second promise to marry in a 
fortnight would not disciiarge the former. 
Ibid. 

(I) Salk. 140; B. N. P. 152; Ld. Ray. 
566. See tit. Accord and SATiePACTioN, 
supra, 15. A debtor being unable to meet 
the demands of his creditors, they signed 
an agreement, which was assented to by 
the debtor, to accept payment by his co- 
venanting to pay two-thirds of his annual 
income to a trustee of their nomination, 
and give a warrant of attorney as a collar 
teral security. The creditors never nomi- 
nated a trustee, and the agreement was 
not acted upon. The debtor appeared to 
have been always willing to perform his 
part of the engagement ; held that the 
agreement, thougli not properly an accotd 
and satisfaction, was stiU a good defence 
on the general issue, as it constituted a 
Talid new contract between the creditors 
and the debtor, capable of being imme- 
diately enforced, and the cousidemtiuu for 
f u 4 



104 



ASSUMPSIT : dbfendaict's proofs. 



Dischaige. 



release (m) ; or that it has been merged in some higher gecurity (ii) ; or had 
been rescinded (o); waived (/?); or suspended (9) ; or that the recovery 
would occasion circuity. 
That the performance became impossible, by the act of Crod ; as that a 



wbich to each creditor was the forbear- 
ance of the rest ; and as there appeared no 
failure of performaoce on the part of the 
debtor. Good v. CheaeouMf 2 B. & Ad. 
328 

(w) B. N. P. 162; Dong. 107. 

(n) Vide Pudsey^i Ceue, cited 2 Leon, 
110; 3 East, 25a. Hotier y, LordArun- 
dell, 3 B. & P. 7. Partridge v. Court^ 
6 Price, 412. Where the contract is under 
f eal, auumprit does not lie, for the law will 
not raise an asmmpnt where the party 
reaoTta to a higher security ; therefore, if 
tlie obligor of a bond, without some new 
consideration, as forb«urance, promise to 
pay the money, cugumptit will not lie. 
Touisaint v. Mctrtinnant, 2 T. R. 100. 
Tliere the surety toolc a bond firom the 
principal. 80 where a sum is due for 
freight and demurrage under a specialty 
contract, the plaint^ cannot recover in 
indelntatits oMtumptit. Atty v, Parishf 
1 N, R. 104. But a fireighter may recover 
against ship-owners fq^ negligence, al- 
though the captain (one of the shipK>wnen) 
lias entered into a charter-party under seal 
with the plaintiff. Leslie v. Wilwn, 3 B. 
& B. 171. For ship-owners are cluuge- 
able upon their general liability in respect 
of the duties which belong to them as such, 
and which are not inconsistent with tiie 
charter-party. The only exception to the 
rule is an action of debt for renty and that 
rests on the consideration that by the de- 
mise an interest in the land passes. 1 N. R. 
104. And vide Hardr. 332; Warren v. 

Consett, 8 Mod. 107; Com. Dig. tit. 
Plbader, [O.] 15; Kemp v. Goodall, 

1 Salk. 277. Hence in an action for rent 
due under a demise by deed, nil debet is a 
good plea. lb. Where the obligor of a 
respondentia bond, by indorsement upon 
it agreed to pay the money to any assignee, 
it was held that an assignee might maintain 
indebitatus (usumpsit, Fermer v. Mears, 

2 Bl. 1260. But this has been doubted by 
Lord Kenyon, in Johnson v. ColHns, 1 East, 
104 ; and Bayley, J. White v. Parkins, 
12 East, 582. But where there is a sub- 
sequent parol agreement not inconsistent 
with the deed, and founded on a sufficient 
consideration, assumpsit lies. See Leslie 
V. Dela TorrefClted 12 East, 583; White 
V. Parkins, 12 East, 578. A guarantee 
by the deed of a third person is no merger. 
White V. Cuyler, 1 Esp. C. 200; C T. R. 
176. 

(o) Where the defendant hired a carriago 
of the plaintiff for a certain time, and before 
it hud expired sent it back; held that if 
the pUiintiff sold it within that time, it 
would have been a rescinding of tiie con- 
tract, and he could not be entitled to the 



stipulated hhre. Wright v. MHrnUe^ 3 C. 
k, P. 542. See further, Qarrard v. Woolr 
ner, 

(p) The seller of goods, on the bayer's 
refusing to accept them, requested him to 
sell them, which the buyer agreed to do, 
but could not; tUs amounts to a waiver 
by the seller. Gomery v. Bond, 3 If. & 8. 
378. 

(q) Stock having been transferred to 
another name und^ a forged power of 
attorney, whilst it was doubtful whether 
the Bank of England was by law liable to 
make good the loss, the stock owners en- 
tered into a contract with the Bank, 
whereby the latter agreed to replace the 
stock and pay the intermediate dividends, 
and the former agreed, in the first instance, 
and before they daimed the stock, ad- 
versely to tender a proof on the estate of 
the party who had fraudulently transferred 
it, and had received one payment of such 
dividends, but had refused to tender the 
proof; held that the Bank were entitled 
to avail themselves of the agreement, as a 
suspension of the plaintiirs right to sne, 
until they had performed their part of the 
stipuUition. Straceyy, Bank qf England, 
6 Bing. 754 ; and see Longridge v. Dor- 
viUe, 5 B. & A. 117. Action by the 
drawer against the acceptor of two bills, 
the iatter, upon an arrangement, assigned 
certain property as a security for certain 
sums then due, as well as for future de- 
mands, with a power of sale after six 
months' notice ; held that it could only be 
considered a collateral security, and did 
not suspend the personal remedy. Smes 
V. Widdawson, 4 C. & P. 151. Upon an 
agreement with their general creditors, 
the defendants snirettdered all their stock 
to trustees, and agreed to execute a con- 
veyance of all their estate, the trustees 
entered on the management and paid divi- 
dends to the amount of lOt. in the pound ; 
the defendants afterwards being called up<m 
to execute the conveyance, required that it 
should contain a general release from the 
creditors, and deeming the one inserted in- 
sufficient, refused to execute; but ail the 
creditors had not then executed it; and 
before an adjourned meeting was held to 
obtain such execution, the plaintiff com- 
menced his action ; held that the agree- 
ment, purporting to contemplate a suspen" 
sum of the right of action by the creditors 
until a final meeting and execution of the 
instrument by the creditors, and refusal by 
the defendants, the creditors were not re- 
mitted to their former rights, and the action 
was therefore premature. Tatloch v. Sifoiht 
6 Bing. 339. 



assumpsit: dsfendants proofs. 



105 



lioTae bu«d by the defendant for a journey died on the journey, without the 
defendant's £Eiult (r). 

He may show that no consideration erer existed ; or that it has wholly failed 
through the negligence of the plaintiff («) ; or was insufficient in law (t\ or 
illegal («) ; or, lastly, he may prove that the promise has been performed, 
as by payment (x), or the deliyery of the thing contracted for(y). 



(r) GUb. Law of Bv. 187 ; Tri. per Pais, 
3891 Seetiif where performanoe was im- 
possible at the time of the promise. Com. 
Dig. AcnoH oir thb Casb on Assump- 
sit, [G.] ; and see Com. Dig. Condition, 
[D.] 1. And a p2atii<|^camiot show tl^at 
performanoe of the eontideratian became 
impossible by the act of God. Ihid. If 
&he eonditioB of a feeflfaient be impossible 
St the time of making, and precedent, tlie 
estate does not rest; if sabseqnent, the 
estate becomes absolute. If a oon(Ution 
labseqoent on the fisofltaient be possible at 
the time of tiie feoflhient, but afterwards 
beeome impossible, the estate is absolute, 
fer it has Tested; secitf, in the case of an 
ebltgstien, which is executory. Co. litt. 
i06L A condition to create an estate is to 
be eonstmed according to tlie intention of 
the parties ; to destroy an estate, is to be 
eoBstraed strictly. 1 Ins. 210b.; 3 B. & 
0.846. 

(«) See tit Goons 80U> and dbli- 
yaasD. — Nbouobncb. — Wobk and 
Labour. Qrimaldi t. White, 4 Esp. C. 
OS. BafteiiT.J9ii»sr,7£ast,479. Fam^- 
worth y. Oarrardf 1 Camp. 48. Fiiher 
▼. Saamtda^ I bid. 190. Leuya r. Co^grwat, 
8 Tnint. 8. The inference from these cases 
seems to be, that where a contract is made 
fcr a speeifie tiling, at a specific price, and 
the contract be not performed, the party 
must either rescind the contract in toto, 
or pay the price; but that where there is 
DO specific contract, and the plaintiff pro- 
ceeds on a qyLtmJtum meruit, he must re- 
eoter according to the vttlue of the work, 
or the article to the dtfendant ; and con- 
sequently where there has been no bene- 
fidai service, he is not entitled to recover 
anything. In Roffey v. Smith, 6 C. 8c, P. 
608, it was lield that the defendant in an 
action of indebitatus oMgumpnt, was not 
St liberty, under the plea of nan-oMMumptU, 
to slmw that the goods were of no value; 
tamen qu,, for in such a case the plea is to 
operate as a denial of the matters of &ct, 
firam which the contract may be implied 
by law. In the case of Fowler v. Mark- 
tkl^ York Sommer Ass. 1836, Parke, B. 
aiiinittnii evldeDce of negligence in defence 
of an action of indebitatui oMeunymt for 
woik and labour under this plea. Where 
the action is on a special contract, the 
want of consideration is not, it seems, ad- 
missible under this plea. Paetengery, 
Brooktif 1 Bing. If. C. 687 ; but see Berk- 
nSam T. Davison, 3 M. & W. 179. In an 
seHoQ for contribution by one joint owner 
of a liilp against another, to recover a por- 



tion of damages recovered by a third person 
sgsinst the i3aintiff for the recoveiy of the 
value of goods sent by the ship, the defen- 
dant may show, under the general issue, 
that the g^oods were lost and damages 
incurred through the misconduct of the 
plaintiff. Qregory v. Hartnall, 1 M. & 
W. 183. Under the same issue, the de- 
fendant may show that the goods were not 
equal to the warranty. IHeken v. NeaU^ 
I M. & W. 566. GraunteU v. Lambe, I 
M. & W. 368 ; or that the work was done 
under a special contract, under which 
nothing is due. Jones v. Nanny, 1 M. & 
W.883. 

(f) The receiver of the wife's estate, by 
the direction of the husband, but wiUiont 
the wife's authority, accepted a bill for the 
husband's debt to the drawer, and being 
afterwards called upon by the husband and 
wife to pay over to them the rent received, 
when the bill became due having refused 
to pay it, unless the plaintiff would give 
him an indemnity for being reimbursed by 
the husband and wife, which was accord* 
iagly given ; the bill not being ultimately 
paid, held, that to avoid cireuity of action, 
the drawer could not maintain the action. 
Carr v. Stephens, B. & C. 768. 

(tt) Supra, 63. Every such defence 
must be specially pleaded; as that the 
work and labour were illegal. Potts v. 
Sparrow, 1 Bing. N. C. 694; 3 Dowl. 
P. C. 630. Marten v. Smith, 4 Bing. 
N. C. 436. So where a contract is made 
void by statute. Bamett v. Qlossop, 
3 Dowl. P. C. 686; 1 Bing. N. C. 633. 
But it seems that the want of a sufficient 
memorandum of the contract may be ob- 
jected under the general issue. Johnson 
V. Bodgson, 8 M. ft W. 663. BUiott v. 
7%Ofiuu,8M.&W. 170. 

{x) By a late rule of pleading, T. T. 1 
Vict., it is ordered that payment shall not 
be allowed in any case to be given in evi- 
dence, in reduction of damages or debt, 
but shall be pleaded in bar. 

(y) B. N. P. 163 ; Salk. 140 ; Ld. Ray. 
666. Although it was once held that per- 
formance must be pleaded. Ibid,; and 
1 Mod. 810. See tit Pathbnt. So it 
is a defence that the amount has already 
been recovered in a former action ; or that 
the plaintiff, in a former action where he 
was defendant, might have availed him- 
self of his present claim in dimlnutfon of 
damages. Hirst v. Athnson, 3 Camp. 63; 
see Batten v. Butter, 7 East, 479. A 
consignee is not liable for the dday of the 
vessel, if he cannot get his goods because 



100 



ATTAINDER. — ATTOBKST. 



Defence — 
dumagcj}. 



The defendant cannot give evidence of any matter which arose after 
the commencement of the action, not even payment of the debt and 
costs, except for the purpose of diminishing the damages, which in such 
ease would be merely nominal (z). So for the same purpose he may give 
in evidence any other payment (a). The Statute of Limitations will be no 
bar under this issue, although it appear from the plaintiff's own showing, 
or even from the declaration itself, that the cause of action did not arise 
within the six years (b). 

The fact that others who are not joined contracted jointly with the de- 
fendant, is available by plea in abatement only ; if it be proved it shows no 
variance ; for it is stiU true as alleged, that the defendant undertook and 

promised (c). 

The evidence under the pleas of a tender of the money before action 
brought; the Statute of Limitations ; a set-off; payment; infancy (iQ; 
coverture (e), will be afterwards considered. 

ATTAINDER OF FELONY (/). 

Is pleadable in bar against a demand accruing after the attainder (g). 
The proof is by the record of the judgment (A). For the effect of an 
attainder as to competency, see title Infamous Wxtvbss ; and see also 
tit. Cbbtificate, 

ATTORNEY, 

Proof that Iir an action by an attorney for slandering him in his profession, he may 

^^^^^tfcQ P'ove that he is an attorney by means of an examined copy of the Roll of 

Qgy^ Attomies (t), or by the book of admissions from the Master's Office (A). 

But it is sufficient to prove that he has acted as an attorney of the court of 

which he is alleged to be an attorney (/). It is not necessary to prove that 

he has taken out his certificate (m). And if the defendant's words assume 



another's goods prevent him ; but where 
the delay is occasioned by his own defaolt, 
H is no answer to the claim for demurrage 
that other consignees have already paid 
to a larger amount for the same period. 
Dobion v. Droopy 1 M. ft M. 441. In 
an action on the cbartei^party for not 
taking a full cargo, which appeared to 
have arisen from waste of room in making 
the arrangements for stowage, which 
▼aried from that stipulated by the charter^ 
party ; but one of the plaintiffs and their 
broker, who managed tlie business, were 
present at the time, and allowed the ex- 
pense to be incnrrcNl without making any 
oljection ; held tliat they were not entitled 
to recover. Hovill ▼. Siephentony 4 Carr. 
& P. C. 470. 

(z) Holland y. Jourdaitif HolfnC 6. 
After money has been paid without a rule 
of court, the defendant cannot try the 
merits, and the costs inevitably follow. 
Per Ld. Ellenborongh. Atkiruonr, Thomr 
ton, 1 Camp. C. 669, n. 

(a) B. N. P. 163; 2 Lev. 81. But the 
payment of must be pleaded ; see the new 
rule, supra f 106, note (x). 

{b) B. N. P. 162 ; 1 WUl. Saund. 283, 
n. (z) ; lb. vol. 2, 63, (a) ; Salk. 278. 

(c) 1 WUl. Saund. 291, note (4); but 



see Gilb. L. £v. 189; Vent. 52; and see 
B. N. P. 162. 

(d) The evidence applicable to these 
will be considered under those respective 
titles. 

(e) See HusBANn and Wife. 

(/) The Stat. 64 Geo. 3, c. 146, takes 
away corruption of blood as a consequence 
of attainder, except in high and petit 
treason, murder. 

{g) Bvllock V. Doddiy 2 B. & A. 273. 

[Ji) Vide VoL I. and Index, tit Judg- 
ment. 

(i) 4 T. R. 366. When an attorney is 
admitted and takes the oath, he subscribes 
his name upon the roll. 2 Esp. C. 520. 

(Jt) This contains the names copied 
from the original roll, and is admissible 
for the purpose of such proof upon an in- 
dictment for perjury. R, v. Crossley, 2 
Esp. C. 626. 

(0 Berryman v. Wite, 4 T. R. 360. 

(m) Jone$ v. Stevens, 11 Price, 235. 
And the court were of opinion that al- 
though the plaintiff had, previously to ttie 
libel and the action, omitted to take out 
his certificate for one whole year, during 
which he continued to practise, he still so 
far retained his character of an attorney 
as to be entitled to recover in respect of a 



ATTORNBT t ACTION POR COBT8. 



107 



that tlie plaintiff ifl an attorney, it operates as an admission that he is so, 
and supersedes the necessity of other proof (n). 

In an action by an attorney on his bill (o), he must prove (p) his Proofs in 
retainer {q) by the defendant ; which may be proved by evidence that the ^^^ costs- 
defendant attended at the plaintiff's office, and gave directions from time 
to time whilst the business was going on. Undertaking to pay what is due 
is an admission of a retainer ; and therefore in an action on the bill, the 
production of the Judge's order for taxation, the defendant's undertaking, 
and the master's allocatur, is sufficient evidence of the fact He should Basiness 
next prove that the business was done as stated in the bill, which is usually done, 
proved by a clerk or other agent who was concerned in the manage* 
ment of the suit or business, without proving the bill item by item (r)« 



libel published against him in that eapa> 
city, although lie could maintain no action 
tor fees, and was subject to penalties under 
tlie Stat. d7 Q. 8, c. 90, (tamen qwBre)* 
At all events it wonld be insufficient, as 
in that ease, merely to show the omission 
to take out the eertUleate, without evidence 
to negative a readmission. Pearee v. 
WkaUy 6 B. & C. 38 ; where the pcrint was 
ruled in an action by the plaintiff, as an at- 
torney, for fees. 

(m) P. C. lb. Where the pUdntiff al- 
leged generally that he was an attorney, 
and declared for the words, '^ he is a petti- 
fogging, bloodp«ncking attorney," proof of 
the wends was held to be sufficient, with- 
out any evidence of attorneyship. Arm^' 
strong v. Jordan, ear. Hullock, fi. Carlisle 
Summ. As. 182a 

(o) Indebitatus atsumpsU lies for fees 
aipiiost a third person who lias retained 
the plahntiff as an attorney. Sands v. 
TreoUian, Cro. Car. 104. Ambrose t. 
BoSf Skinn. 217. Though the business 
has been transacted in another Court. 
Tkursby v. Warren, Cro. Car. 159. But 
a solicitor on the equity side of the £x« 
chequer is not entitled to practise in Chan* 
eery; and it seems that a solicitor in 
Clianeery cannot authorize a solicitor on 
tlie equity side of the Exchequer to prao- 
tiee there in his name. Vincent v. Holt, 
4 Taunt. 452. But an attorney may r^ 
cover the costs of a commission of bank- 
rupt, though he l>e not a solicitor in 
Chaocery. Wilkinson v. JHggell, 1 B. & 
C. 158. Although an attorney may, it 
seems, practise in another court, in the 
name of, and with the consent of, an at- 
torney of the latter court, he cannot do so 
in his own name. Lothian v. Hyde, 1 C. 
4c If. 28; 3 Tyr. 148. But see Vincent 
V. Holt, 4 Taunt. 452. Where scTeral 
sued as attomies of the Palace Court, and 
it ^>peared that but one of them was an 
attoniey of that court, it was held that 
they could not recover. Arden v. Tucker^ 
IM.&B. 191; 5C.&P.258. 

(p) TbsXi» n an action of iiuieM^ohcf 
assumpsit, which is the usual form, and 
when the gentral issue has been pleaded. 

(g) An attorney made an agreement 



with his client to conduct all his suits in 
consideration of the client giving to him 
exdusiTCly the drawing of his leases, it 
was held, that the breach of this agree- 
ment would not enable the attorney to 
recover on his bill, he must either put an 
end to the agreement, or sue for a breach 
of It. PaAer v. Harcourt, 5 Esp. C. 
249. A declaration by the plaintiffs 
clerk on a taxation of costs, that the 
attorney undertook the cause gratis, is 
evidence for the defendant in an action by 
the attorney. AsJ^ordy, Price,9 Starkie's 
C. 135. Qwtre, whether an attorney can 
legally guarantee the petitioning creditor 
a^nst the costo of the commission, on 
condition of being employed as solicitor 
to tlie commission. OiUet v. Rippon, 
I M. Sl M. 406. And see Murray v. 
ReeveSf 8 B. & C. 421 . An agreement to 
pay at a certain spedfled rate is not bind- 
ing upon the client ; at all events it is not 
concbslve. Drax v. Seroope, 2 B. & Ad« 
581. In order to entitle the attorney to 
proceed in the action for costs, after the 
debt has been settled without his inter- 
vention, he is bound to make out a clear 
ease of collusion between the plantiff and 
the defendant, to deprive liim of such costs ; 
where there was only a ground for suspi- 
cion, the Court stayed the proceedings, 
but without costs. Nelson v. WHson, 6 
Bing. 568. Where the defendant alone 
employed the plaintiff in suing out a com- 
mission of bankrupt on the petition of a 
^ third person who never employed him in 
'it, the defendant is alone liable to the 
plaintiff. Pocoek v. Ruuell, 4 C. & P. 
14. Where the commission had not been 
proceeded in, nor anything received under 
it, held that the attorney was entitled 
to recover his charges against the cre- 
ditor employing him. Pocoek v. Ato- 
seU, 1 M. & M. 357. Where one attorney 
does business for another, the ordinary 
implication is that credit is given to 
the latter, and not to the client; although 
the business was known to have l>een done 
on behalf of the client. Serace v. WhU" 
ttn^Oft, 2 B. & C. 11. 

(r) PlnUips V. Roadh I Bxp. D. N. P. 
10. 



108 



attobnst: action fob costs. 



Delivery 
ofabilL 



If the charge be not for bnsiDess done in court, evidence mnst also be 
given of the reasonableness of the charges («); but if it be for business 
done in court, he must (0 prove the delivery of a bill to the de- 
fendant (tt) according to the stat. (or), or that he left one at his dwelling* 



(«) It is not however nnnsiial to give 
evidence of the reasonableness of the 
charges, althoagh the bill be for business 
done in court; and I have known snck 
evidence to be reqoired. 

(t) Soch evidence is unnecessary, unless 
the plea deny the delivery. Moor v. Dent, 
I M. & R. 402; Rdbiman v. Roland, 6 
Dowl. 871 ;Xa]MV.G20ifiy,7Ad.&ElL83. 

(u) Where there were two defendants 
not partners, held to be sufficient to de- 
liver the bill to tlie one who managed the 
busfaiess. Finehett v. Howe, 2 Camp. 
277. Per Ld. EUenborongh, C. J. 1 Camp. 
438 ; and temMe, that it wonld be insulfi. 
dent to deliver it to the party who did 
not intermeddle. 2 Camp. 277. Where 
several parties have a jofait interest in 
resisting a claim Ibr tithes, tliough tlielr 
individual interests be separate, and jointly 
retain an attorney, the delivery of the bill 
to the party who actually retains him is 
sufficient. And see fturther as to a Joint 
retahier. HUdeffe v. Qregary, 1 C. & P. 
627; OjcenAom V. X«ium, 2 D. 4c B. 461. 
See Snowden v. 8hee, 1 Camp. 487. 
Where a party in a cause changed his 
attorney pendente lUe, and the second at* 
tomey obtained an order for the delivery 
to lilm of a bill signed by the first, it was 
held that such delivery was a delivery to 
the party charged, within the words and 
meaning of the statute. Vi$uent v. Slaif' 
maker, 12 East, 372, by three of the 
Judges; Ld. Ellenborough, C. J. die- 
sentienie. The showing and explain- 
ing the bill without a delivery is in- 
sufficient. Crowder v. 8kee,l Camp. 437. 
Personal service is not necessary ; a re- 
delivery to an agent appointed for the 
purpose is sufficient. FUiehett v. Howe, 
2 Camp. 277. As to the attorney of the 
party, Warren v. CSinnAngham, Oow. 71. 
Vineeni v. SlaymaJter, 12 East, 372. 
Where a bill has been delivered contain- 
ing taxable items, the unreasonableneBS 
of the cbaiges cannot in strictness be , 
disputed on the trial. Andereom v. May, 
2B.&P.2d7. Xee V. Wttem, 2 cutty's 
K 6&. But it is not unusual to give such 
evidence, 

(«) 2 G. 2, c 23, 8. 23 ; which enacts 
that no attorney or solicitor in any of the 
courts aforesaid (vis. any oourt of record 
in England, wherein attomies have been 
aoeustomably admitted and sworn,) shall 
commence or maintain any action. &c. for 
the recovery of any fees, charges, or dis- 
bursem<>nts at law, or in equity, until the 
expiration of one month, or more, after 
such attorney, &e. shall have delivered 
unto the party or parties to be charged 
therewith, or left for him, kc. at his. Ice. 



dwelling-bouse, or last plaee of abode, a 
bill of such fees, &c. written in a common 
legible hand, and in the English tongue 
(except law terms, and the names of writs), 
and in words at length, except terms and 
sums ; which bill sludl be subscribed with 
the proper hand of such attorney or soli- 
citor respectively. The month is to be 
reckoned exclusively of the days on which 
the bill is delivered and action brought. 
BUtant V. Hetlop, 8 Ad. & EIL 677. This 
statute extends to business done at the 
quarter sessions. Clark v. Danmaan, 6 
T. B. 694; Ex parte WUHame, 4T. R. 
406; SUvetter v. WOeter, 9 Bhig. 888; 
although attomies be not admitted tiiere 
contrary to the ruling of BnUer, J. in 
Stephenson v. Taylor, York Summer 
Assis. 1786. To a charge for a dedimue 
poiettatem, ex parte Priekett, 1 N. R. 
266; or warrant of attorney with a view 
to business in court, under the liead of 
^^fees at law." Sandon v. Bourne, 4 
Camp. 68. Bat wee Bwrtonr.Ckatterton, 
3 B. Ae A. 488 ; Wdd v. Cratqford, 2 
Starkie's C. 638 ; WiUon v. Qutteridge, 

3 B. & C. 167. For business done in Uie 
Insolvent Court Smith w. Wattleworth, 

4 B. & C. 364. In the County Court 
WardU v. Nieholeon, 4 B. 4e Ad. 469 ; 1 
N. k M. 356. In a criminal suit in the 
Great Sessions fai Wales. JUoydv. Maimd, 
6Tldd, 330. For drawhig an affidavit of 
debt snd getting it sworn. Winter v. 
Po^ne, 6 T. R. 646. Obtainhig the Chan- 
cellor's signature to a bankrupt's certifi- 
cate. CoUini V. NiehoUon, 2 Tsunt 321 . 
See Ford v. WOb, 3 B. & a 241. At> 
tending at a lock-up liouse, procuring the 
defendant's release, and iU^ng up a bail 
bond. Feame v. Wilson, 6 B. A: C. 87. 
Attesting a replevin bond. Wardle v. 
Nieh6Uon,4. B. & Ad.469; 1N.A:M.366. 
Attending bail and endeavouring to arrsnge 
and procure eognomts. Watt v. Cottins, 
1 B. ^ M. 284. Charges for attending 
and advising steps in a suit which has 
been brought against his client are taxable, 
and bring the whole bill withfai the eflbet 
of the statute of 2 Geo. 2 ; the advance of 
money to the cUent to pay the costs of 
such suit does not vary the case. Smith 
V. Taylor, 7 Bhig. 260^ and 6 tf. & P. 66. 
(diss. Aldersoii, J.) To money paid by 
the attorney on a judgment against his 
client Crowder v. Skee, 1 Camp. 437. 
It has even been held, that if any one of 
the items in the bill relate to business 
done in court, the plaintiff cannot recover 
as to items which are not witliin the 
statute, but wliich are connected with liia 
profossional capacity, unless he pnrre the 
delivery of a bUl. Winters. Payne, 6 T. 

R.646. 



ATTOBMSY : DELIVERY OP A BILL. 109 

bouse (y) or lost place of abode («), subscribed by him, one month (a) or 



(y) Leaving at the coantiog-honte it 
not a good deUvery. Hill t. Uumphreyt, 
2B.&P.343. 

(r) It it not soffldent to show that the 
bill wM delirered at a particalar place, 
without eridence that it was tlie defen- 
dsnt's place of abode ; and that the defen- 
dant afterwards delivered it to his attor* 
ney'sderk. .BEoftt ▼. iVbaief, M. & M. 805. 
Bot it is sufficient to show that it was left 
at the last known place of abode, and it is 



B.615. HiU T. Hunqthreyt, 2 B. & P. 
S43. Bat although the bill contains items 
not spedlied aoeording to the slatate, he 
mj recoTer in respect of a portion of his 
bill as to which the provisions of the 
ftatate have been complied with. Wal- 
kr T. Xoty, 1 H. & G. 54. The bUl 
ought to contain the whole chargea, one 
contaimng only the items of the extra 
costs, and omitting the items ct taxed 
eoits reneived from the other side is not 
a eompiiance with the statute. /&. But 
where no bill has been delivered, although 
the plaintiff cannot recover costs out of 
pocket, he may recover in respect of mere 
coofeyancing bnainess, per Lord Kenyon. 
ift/2crv. Towen, Peake*B C. 102; and 
per Ld. BIdon, hi 2 B. & P. 345. So, 
where an attorney had not delivered any 
biU, bat merely partienlara of demand 
nnder a Judge's order, held, that he was 
estitkd to recover for monies paid to his 
elieat's use, having no reference to his 
bosfaieBs of an attorney, although the par- 
ticnlan contahied some taxable items. 
Mvwt/rayy. FlenangyW East, 265. Wdd 
T. CntMifigrd,^ Starkie'sC. 538. An attor- 
ney eannot split his demand, and thereby 
exenpt part of It from taxation; where 
therefore a second bill containing items 
oot taxshle, was found not to have been 
delivered a month before the action, it was 
held that he could not recover. Tkiotxitei 
V. Maditrmmy 1 M. & M. lOQ; & 3 C. & 
P. 941. But an attorney may recover 
ibr money lent on a distinct occasion, 
and not being disbursements in the cause. 
Hemng v. WiUon^ 1 M. & M. 529; 
k 4 Carr. Sl P. C. 318. Although his 
bill has been regularly delivered accord- 
big to the statute. And see Hill v. 
Hm^hieif 2 B. & P. 343 ; Beruon v. 
Garaa, £sp. C. 149. This rule seems 
however to be sulgeet to the proviso, that 
thedlitiiMtand untaxable items have no 
refereaee to the plaintiff's professional 
efaarwter. An attorney not having de* 
livered any biU before action brought, and 
dtUveied partiealarB containing some tax- 
tbk items, it was held that he could 
Dot leoover in respect of items not tax- 
able, bat which was due in respect of 
buBiness done, as money paid to his client's 
use in his character of an attorney. War^ 



not sufficient for the defendant to show 
a change of abode without also showing 
a later known pUice of abode. Wadeion 
▼. SmUhy I Starkie's C. 324. 

(a) A lunar month sufficient. Hurd v. 
Leach, 5 Esp. C. 168. By the uniformity of 
process Act, 2 W. 4, c. 89, b.1 1, the issuing 
of the writ is for all purposes the com- 
mencement of the suit AUton v. Under' 
AU/, 1 C. 4c H. 492. SeetitTiXB. 



die V. Ni^^oUoUy 4 B. & Ad. 469; 1 N. & 
M. 356. Business done by an attorney 
for assignees, the greater part of which 
relates to proceedings under the commis* 
sion, is not within the 2 Geo. 2, c. 23, s. 
23 ; charges also for attending to advise 
witii the solicitor of a creditor as to 
opposing the bankrupt's discharge from 
custody, and a like duuge as to opposing 
his discharge under the Insolvent Act, are 
not taxable charges within the Act; pro- 
ceedings in banluruptcy are not proceed- 
ings in equity within the statute. CrmiH 
dsrv.Dorier, 3 Y.& J. 433. The statute 
does not extend to mere charges ibr con^ 
veyandng. Hill v. Humpkreye, 2 B. & 
P, 345; B. & P. 145. Nor to a charge 
for searching at the Judgment Office, 
whether issues had been copied or dock- 
etted, or satisfactioo entered on tiie roll. 
Fenton v. Carria, 1 B. & M. 202. Nor 
to business done in the House of Lords 
upon an appeal. Williame v. Od^^ 4 
Price, 479. Or hi the Middlesex Court of 
Requests, Beeke v. Wells, I C, & J. 76. 
Nor to business done under a eomraission 
of bankruptcy. Crcwder v, Daviee, 3 T. 
& J. 433. Hamilton v. Jonm, 4 tf , ^ 
P. 809. Nor to a payment of debt and 
costs by an attorney, who has put in ball 
for the defendant, and paid such debt and 
costs without havhig them taxed, and 
without making any charge for his own 
labour, Prothero v. Thomat, 6 Taunt. 
196 ; tamen qtu for the statute uses the 
term di^mrsement as well usfees: and 
see Crowder v. Shee, 1 Camp. C. 437 ; 
nor to a charge for preparing an affidavit 
of a petitioning creditor's debt (which is 
not sworn), and bond to the Chancellor* 
Barhtr v. Chatterton, 5 B. & A. 686; hi 
which case the court questioned the de- 
cision in Sandon v. Bourne, n^a; eeeus, 
Umible) had the affidavit been sworn. J^. 
Where the bUl contained tUibrevlations of 
whose meaning there could be no doubt, 
it was held to be sufficient to enable tha 
plahitiff to recover. Froud v. SHUard, 
4 C. 4c P. 51 ; and see Beynolde v. 
Coitwell, 4 Taunt. 193. Where the bill 
charged for attendances on particnUirdays, 
and at the end a charge for *' several at- 
tendances," the Judge directed the hitter 
to be deducted. Rowton v. Earl, 4 C. 



iia 



ATTORNEY : DELIVERY OP A BILL. 



Deliyeryof more prerioiu to the commencement of the suit. It is flufficient to 
a bill. show that the bill was left at the defendant's last known apparent place 

of abode at the time when the bill was delivered (&), although the de- 
fendant prove that he had another known place of abode subsequently 
to the delivery of the bill. It must be proved that the bill was left with 
the client, and not taken back again (c). Where a bOl was produced, 
with an indorsement upon it in the hand-writing of a deceased clerk 
of the plaintiff, whose duty it was to have delivered the bill, purporting 
that he had delivered a copy on a particular day, and the indorsement 
was proved to have existed at that date, it was held that the entry was 
evidence of the delivery of the bill(<f). It is unnecessary for an 
executor or administrator to prove the delivery of a bill for business done 
by his testator or intestate (e) ; so where the defendant is also an at- 
torney (/*); or where the plaintiff sues as the assignee of an insolvent 
attorney {g) : nor is such proof necessary where the attorney sets-off the 
amount of his bill ; it should not, however, be produced at the trial by 
surprise, but be delivered time enough for the plaintiff to have it taxed 
before the trial {h). The bill may be proved by a duplicate, original, or 
copy, without notice to produce the one delivered (t), provided proof be 
given that it was signed by the plaintiff. A mistake in the date of the 
items, which does not mislead the plaintiff, will not vitiate the delivery {k). 
It was held that an action might be maintained by a solicitor against an 
assignee for business done under a conunission of bankruptcy, although the 
bill had not been taxed by a master in chancery, under the stat. 5 Geo. 2, 
9. 80, s. 46 (/), 



& P. 44. An item of costs charged to 
haye been paid according to the allocaiur, 
hut not stated in detail, is not snfficiently 
described, bat the plaintiff is not precluded 
by the misdescription from recovering the 
residue of the bill. Drew v. Clifford, 1 
R. A: M. 880. Seethe statute 9 J. l,c. 7, 
s. 1, and Brooke v. Hague, T. Ray. 245 ; 
Clark V. Godlfrey, Str. 633; MUner v. 
Crowdatt, 1 Show. 388. It seems that 
the name of the court need not be stated 
in the Ull. Frmod t. StUlard, 4 C. & P. 
612; Beynoldt v. Caewett, 4 Taunt. 108. 
Where attomies sue as partners, a bill 
signed In the name of the firm is suffi- 
cient Smith V. Jago, 1 C. & J. 642. In 
aetumpeit by the plaintiff, as attorney and 
agent for tne defendant, a country client 
of the plaintiff, for work and materials, 
and for fees, &c. ; held, that the plaintiff 
was not the attorney of the defendant 
within the statute requiring the delivery 
of the bill a month before action; but the 
court would not limit the term ** monies 
in the first count mentioned" to the fees. 
HUl V. Weight, 6 S. c. 682. 

{b) Wadeton v. Snuth, I Starkie's G. 
864. 

(c) Brooks V. Maeon, 1 H. Bl. 290. The 
object of the statute is, that the defendant 
shall have due time to consider the chaiges. 
lb. It is not sufficient that the client ac- 
quiesce in the reasonableness of the charges. 
Crowder v. Shee, 1 Camp. 437. 

(<f) Campneyiy. Peck, I Starkie'sC.404. 



(«) 1 Barnard, K. B. 483; Andr. 276; 
1 Tidd, 316. Barrett v. Most, 1 C. & P. 8. 

{/) Although the business was done be- 
ibre the defendant became an attorney. 
Ford V. MaxtoeU, 2 H. B. 689; 12 G. ft, 
c. 13. Bridges v. Francis, Peake's C. I ; 
I Esp. C. 221. Wildbore v. Brffon, 8 
Price, 677. And such a bill is not within 
the St 3 J. 1. c. 7, 8. 1. Sandys v. Hbm- 
5y, 1 M. & Ry. 83. So agents are not witli- 
In the statute. lb. and Jones v. Price, 
cor, Lee, C. J. 1748, Sel. N. P. 168. HiU 
V. Sydney, 7 Ad. k Ell. 966. 

(g) Lester v. Lazarus, 2 0. M. ft R. 665. 
So in case of a set-off it has been held to 
be sufficient to deliver it to the plaintiiF 
in time to have It taxed before the trial. 
Martin v. Winder, Doug. 199, n. ; but fee 
Bulman v. Burkett, 1 Esp. C. 449. 
Where Lord Kenyon intimated that in 
such case a written notice is necessary ; and 
see also Murphy v. Cunningham, contra, 

(h) Dougl. 199 ; 1 Esp. C. 499 ; 1 Tidd, 
818. Bulman v. Birket, 1 Esp. C. 449. 

(i) Anderson v. May, 2 B. & P. 237. 
And see Jory v. Orchard, 2 B. ft P. 99. 
PhU^wm V. Chase, 2 Camp. 1 10. ColUng 
V. Treuricke, 6 B. ft C. 394. Fyson v. 
Kemp, 6 C. ft P. 72. Vide supra. Vol. 
Land Ind. tit. iNsmnvBHTAaY Pboop; 
and if\fra, tit. Notice. 

(k) WiUiamsv, Barber f 4 Tmnt 906, 

(0 Tarn v. Heys, 1 Starkie, 278. See 
Arrowsmith v. Barfard, lb. in note; 2 
Camp 277. 



attobvet: dbfbkcs. 



Ill 



It is a ^neral rule In such cases that the bill cannot be taxed at the Delivery of 
trial, for the defendant might have had it taxed previously, and his delay ^ ^U'- 
for the space of a month before the commencement of the action is cTidence 
of his acquiescence (in). It is sufficient to give in CTidence a Judge's order 
to tax the bill, the defendant undertaking to pay what should appear to be 
due on the master's allocatur thereon (n). The deliyery of a former bill is 
coDclusiye CTidence against any increase of charge in a subsequent bill, 
on any of the items contained in it, and is strong presumptive evidence 
tgainst any additional items (o) ; but it will not estop the plaintiff from 
proving that in ft&ct he had transacted other business for the defendant. 

An admission by the defendant of the delivery of the bill to enable the 
tttomey to prove it under the defendant's commission, does not afford such 
a presumption as to dispense with proof in an action of the delivery re- 
quired by the statute, no such delivery being necessary to enable him to 
prove his bill under the commission (p). 

The plaintiff must also prove that the action was not commenced till a 
month after the delivery of the bill, by the production of the writ, or by the 
Nisi Prius record (q). 

The contract to conduct a suit is entire, and where the suit has ended 
within six years, the Statute of Limitations will not bar the demand for 
such business as was done more than six years ago (r). 

The defendant may insist (imder a proper plea) in bar of the action that Defences 
the plaintiff, at the time the business was done, was disqualified from 
practising as an attorney, by having omitted to take out his certificate for 
one whole year (s.) 

It has been doubted whether the defendant can set up the plaintiff's 
negligence, however gross, as a defence to the actioh (/) ; there seems, 
however, to be no reason to except this case from the operation of the gene- 
ral role now established, that a plaintiff shall not be allowed to recover in 
respect of services so negligently rendered that the employer has derived 
no benefit from them (u ), 



(n) WaUamM v. FrUhy Doug. 107. 
Hoopers. TiU^ lb. 108; Baroes, 124; 1 
TSdd, 817. Andentm v. Jfc^, 2 B. & P. 
837. Bat the bill may be taxed at any 
tone before verdict or Judgment. Sal. 
N. P. 108, cites Skaw v. Fiekeringy Doug. 
190, in not, 

(») Lee V. J'anei, 2 Camp 40a As to 
tUBtioii, where the attoraey pays proctor's 
fBesiuBedesiMtical Court. See JFVtifiiUm 
V. Peatkerttonhaughj 1 A. & B. 476. 
(o) Loceridge v. Botham, 1 B. & P. 40. 
(p) meke V. Naket, 1 M. & M. 808. 
iq) See Wan. — Commbmcbmsitt of 
Actioh. We66v. lVicM^,lB.&P.283. 
(r) Harris v. Otbame, 2 C. & M.e20. 
(f ) Under the st. 87 O. 3, c. 00. Bat it 
would not be saf&eient to show that he had 
nerdy neglected to t/ike oat his certiflcate, 
nilcM at the time a full year had elapsed. 
Bee Prior ▼. JIToore, 2 M. 4c S. 006, where 
it wu held that in such case the attorney 
might still Mie by attechment of privilege. 
(0 TeHgfler ▼. M'LaehUmy 2 N. R. 140. 
Patmore v. Bimie, 2 Starkie's C. 60. 

(«) See Panuworth v. Oarrard, 1 Camp. 
3d; Denev v. Davereli, 3 Camp. 461, 



Fuhery.SamudOjlCvmpflQO; tf|/hi,tit. 
WoaK AVB LABOua. It is a good defence 
to show that the costs sought to be reco- 
vered have been incurred through want of 
proper caution on the part of the attorney. 
As that they have arisen from his neglect 
to enter into the reoognliances, and give 
the notice necessary, in order to appeal 
against a claim of tithes. Maniriou v. 
J((fferyt, 1 R. & M. 317; 1 C. A P. 118. 
HopJdnionY, Smithy 1 Bing. 16. Where an 
attorney had inourred expenses which were 
useless for the object in view, although 
done bond Jide, held that he was not enti- 
tled to recover them from his client. Hill 
V FeatherHanhaughyl Bing. 600. Entire 
items for useless work may be discarded by 
the jury. Shaw v. Arden, 228. And 
such evidence is admissible under the gene- 
ral issue. HiU v. Allen^ 2 M. & W. 288. 
If other causes besides the defendant'^ 
negligence conduce to the loss of benefit, 
such negligence will not supply a defence 
to theaction. Dax v. Ward, 1 Starkie's C. 
400. It is no defence to such an action 
that the pUintiff was instructed to put in 
a plea of abatement for delay, which he 



113 



attoritbt: proof in actions against. 



Proof in 
actions 
against an 
attorney. 



The defendant may also show in defence, that the plaintiff lires at a 
remote place from that where the business is conducted, by his clerk {x). 
That by agreement the work was to be done gratis (y), or was not to exceed 
a certain sum (2). That the plaintiff has neglected to take out his certifi- 
cate (a). But he may recover in respect of business done at a time when 
he was uncertificated, proyided he take out his certificate before the end of 
a year after the expiration of the time to which the former certificate 
extended (b)* 

It is no defence, under the plea of wm-asmampgU, that one of the plain- 
tiffs was not admitted an attorney of such court (c) ; nor that no bill of 
costs has been deliTered {d) ; nor where the attorney acts as agent («). 

An attorney receiving an offer of compromise, if not communicated to his 
client, g^8 on at his own risk, and cannot charge his client with subsequent 
costs ; but as it is his duty to eonununicate such offer, it will be presumed 
he did so unless the negative be shown (/*). 

In an action against an attorney for misconduct, it must be proved that 
he is an attorney of the particular court, as alleged in the declaration {g). 
The retainer of the defendant by the plaintiff must also be proved. 

With respect to the misconduct of the defendant, and proof of ihit lofts 
which has resulted in consequence, it is to be observed, that it is not every 
neglect which will subject the party to such an action. An attorney is 
only bound to use reasonable care and skill in managing the business of 
his client; if he were liable further, no one would ventare to act in that 
capacity (A). He is not liable, unless he has been guilty of eraua negU- 
gentia (t). This, however, is usually a question of fact to be decided by a 
jury (A). 



neglected to do. Johmon r. AUton, I 
Oimp. 176. An attorney is entitled to 
reeover in respect of preparing docnment, 
althongh its le^Uty at tfate timewas doubt- 
ful, and it turns out to be illegal. Polter 
V. Sparrow, 6 C. & P. 749. An attorney 
cannot abandon his client's cause for want 
of being suppUed with Ainds, mleSs he give 
reasonable notice to the ellent. Ho^ ▼. 
BuUty 3 B. ^ Ad. SOa. And per Lord 
Eldon, C, In CWmimII ▼. Bryan, 14 Ves. 
871 ; see also 1 8id.81, Say. 17S;mntM, for 
reasonable cause and on reasonable notice. 
VantmUUm v. Brown, 7 Biog. 402. Where 
he gave notice of giving up the papers, un- 
1ms supplied with funds, and did so ; held, 
that he was Justified, after such notice, in 
refusing to go on with the cause, and 
might recover for the hnslaess done. Row^ 
mm V. Earle, 1 Mood, k, tf . C. 488. 

(or) Taylor v. Glat^frooke, 8 Starkie's 
C. 76. HopHfUon v. Smith, 1 Bing. 13. 

(y) Athfard v. Friet^ 3 Starkie's C. 
145. 
(z) Jonei t. Bead, 6 Ad. & EU. 639. 

(a) Pearee v. Whale, 5 B. Ae C. 38; 
tfffKi, tit. PRieuif moNB. 

(6) BowTer v. Brown, 2 Ad. k Ell. 16. 

(e) HUl V. Sydney, 7 B. & C. 956; 
under the statute, 2 O. 2, c. 23. 

(d) Lane v. QUnny,! Ad.4e EIL 88. 

(e) HUl V. Sydney, 7 B. &C. 966. 



(/) Sm V. Thomoi, 8 C. & P. 762. 

{g) As to this proof, see above, 106. It 
is said that a bill for business done in a par^ 
ticular court is not evidence that the party 
was an attorney of that court. Green v. 
Jaehton, Peake's C. 236. Sed qu, 

(A) Per Le Blanc, J. in the case of 
CompUm V. Chandleu, cited 3 Canap. 19. 

(i) 4 Burr. 2060. Per Ld. EUenbo- 
rongh, BaikU v. ChandUee, 3 Camp. 17 ; 
itifra, note (a). 

{k) Beeee v. Bigbyf 4 B. Jt A. 202; 
Ireeon v. Pearman, 4 B. fc C. 700 ; where 
an attorney acts for both vendor suad pur* 
ctkaser, it seems tliat a small defect In title 
is sufficient to render him responsible. It 
Is the duty of an attorney to examJne the 
original securities for money to be wtvanccd 
by his client, unless he be expreeily ab- 
solved by his oUent. WiUon v. IWAsr, 3 
Stericie's C. 164. Although a party has 
undertaken to procure the attendance of a 
witness upon the trial, it is the daty of the 
attorney to ascertain that the witness is 
In attenidance when the cause Is called on. 
Beeeey.Bigby,4B.kA.90iSL Although 
it be no part d an attonwy's duty to knOTr 
the legal operation of conveyances^ yet it 
is his duty to take care that he does not 
draw wnmg eonelnsions. And, thereforCf 
where an attorney In stating a title to 
counsel on behalf of an intended, purchaaer, 
instead of stating the deeds, states Us own 
cenclosions JM does so at his pedL In 



at^obnbt: proof in action against. 



113 



Belbra the point had been folly settled that the grant of an annuity is Proof of 
Toid, nnleas the trustt of the annuity-deeds be recited in the memorial, it >^1^S«"^^ 
was held that such an omission did not amount to primA /aae eyidence of 
groti negligence (J), It has been held that an action for negligence in con- 
ducting a suit against exdse-officers, cannot be maintained if the seizure 
was lawful, since no damage can hawe been sustained (m). 

Where a declaration against an attorney for suffering the defendant in a 
former auit to be superseded, alleged that she was justly indebted to the 
plaintiff, and it appeared that she was a married womaui the plaintiff was 
nonsuited (»). 

In the ease of Ru8$eU t. Palmer (o), the Court held that the action had 
been well conceired against the defendant for negligence in omitting to 
etose one Stewart^ against whom the plaintiff had recoyered a judgment, 
to be charged in execution within two terms next after judgment. 

The eyidence for the plaintiff in such eases must be reg^ated by the 
declaration which sets out the whole of the case. If he complain that he 
ku lost the debt which was due to him from the former defendant, he must 
proye the existence of the debt ; and if he has obtained judgment to recoyer 
it, he should proye the fact, if alleged, by an examined copy of the judg- 
ment-roO. If the former defendant has been arrested on mesne-process, the 
writ shoald be prodnced, or an examined copy, if it has been returned, and 
the actual time of commitment may be proved by the books of the prison. 
The grounds of the disehairge will be shown by means of the miper$ediea»y or 
Older for the discharge. 

In such eases where the question is, whether the defendant has been 
guilty of gpross negligence contrary to the known and usual practice, those 
who are conyersant in the same kind of practice may be examined as wit- 
nesses on either side {p). 

If the ground of action be negligence in completing a conyeyance, where 
tbete is a defect in the memorial of an annuity, in consequence of which it 
b set aside, the plaintiff, to proye the defect, after having proved the retainer 

Improperly assumes to hfanaelf theduunicter 
of a receiver, and neglects the duty there- 
of^ he will be responsible (in equity) for any 
rents lost by his neglect. Wood v. Wood^ 
Ross. 66& So if £» abandon a sait, and 
nnneoesearily institute another, the Court 
will take care that the client does not suffer. 
lb. 

{I) 4 Bnrr. 9060. PerLd.£Uenborongh, 
JBoifcMV. CAaiuOew, 3 Camp. 17. 

(ffi) Attcheton v. Madockf Peake's C. 
108. See Alexander v. MacauUy, 4 T. R. 
611; also tit Shbrifp. 

(n) Lee v. Ayrtoriy Peake's C. 34. 

(o) 2 WilB. 325. 

(p) 2 Wils. 328. In the case of Pitt v. 
YaldeHj 4 Bnrr. 2060, Mansfield, L. C.J. 
said (alluding to the case of Rtutel v. 
Palmer), ** L. C. J. WHmot told me, that 
it came out upon the defendant's own evi- 
dence, and the verdict went upon that fact, 
that it was lata culpa, or eraaa negli- 
gentiOf in Palmer the attorney ; and that 
there appeared to be in reality no ground 
lor the pretence of compromise, wliich had 
1)een made part of Mr. Palmer's excuse 
and defience." 

I 



tk a ease, whers tbe attoni^cRoneoiisly 
ststed that M, was tenant in fee, whereas 
another was tenant for life, and the counsel 
ia eoBseqoence gave an opinion in &voar 
of the title, which he wotdd not have done 
had he been correctly histmcted ; it was 
held that the Jury were warranted in find- 
i^^ fin* the p»ff*ntMr. Ire$on y. Pearman^ 
3 & & C. 790. In an action agahist an 
attorney finr negligence in a former action 
bm^t by him for the plaintiff, against 
attomeyB for negligence, in which he had 
beat nsnanited ibr want of proper proof of 
a Jttdgment as set ont hi Uie dedaration, 
ffaera being an amMgnity In sta^ng soch 
J udgm e n t, whether a was stated as a direct 
alkgatkm of a Judgment on reeord, or only 
as a eoneeqoenee of that negligence; held 
flmt this was not to be considered as such 
gross negUgcnee as would render the de- 
ftodttit liaMe; held also, tiiat his liability 
wwddnot be Altered by his showing that 
he had cmi s niled others, bat must depend 
oB the nstoxe of the mistake, hi a case 
wtaenAe hnr pieMunes Urn to have the 
reqaMtokAonHedae himsdf. Qad^fray y. 
UiUmif 6 Bhig. 400. Where an attorney 

TOL. IT. 



114 



ATTORMBY : PROOF OF DAMAGES AGAINST. 



Damages. 



of the defendant, his conduct of the business, and the execution of the deeds, 
which should be produced, should prove the rule of court ordering it to be 
set aside, and an examined copy of the affidavits used upon the motion. So, 
if the plaintiff has been evicted in consequence of a defect in title, arising 
from the negligence of the defendant, he should produce the deeds, and 
prove the execution of them and the payment of the money, and show that 
he has been evicted by proof of the judgment in ejectment, the execution 
of the writ of possession, producing the writ or an examined copy, if it has 
been returned. 

In an action against an attorney for negligence in omitting to take any 
step in defence, it is not necessary to show special damage, nor to show 
that the plaintiff had a good defence ; it is for the attorney to show, if he 
can, that there was no defence (q). 

If an attorney sue out a writ in the name of a party, without any autho- 
rity express or implied, and receive the debt and costs of the writ, such 
costs may be recovered back as money had and received (r). 

Where an arrest is made under process, afterwards set aside for irre- 
gularity, the attorney in the suit, as well as the plaintiff, is liable in 
trespass («). 

An action of this nature sounds in damages, and the jury are not to give 
a verdict for the whole original debt, but only such damages as are com- 
mensurate with the loss which has probably resulted from the defendant's 
negligence (t). And therefore the plaintiff should be prepared with evidence 
to show the probability that he should have recovered the whole or part of 
the debt, if the defendant's negligence had not intervened ; as by evidence 
of the circumstances of the party indebted to him. 

The solicitor under a commission is not liable to the messenger whom he 
nominates ; but it is otherwise where he agrees with the petitioning cre- 
ditor to work the commission for a sum certain (u). An attorney cannot 
setoff against a demand of his client for money received on account 
of his client as damages, in an action for services barred by the Statute 
of Limitations (x). 

An attorney is not personally liable to a witness whom he subpoenas (y) 
to give evidence for his client 

Competency of. — On grounds of policy, as has already been seen, an 
attorney is not allowed to disclose the secrets of his client ; neither can he 
be permitted to g^ve parol evidence of a deed, or prove a copy of one which 
has been entrusted to him by his client (z). 



iq) Ood^froyv.Jaiff 7 Biog. 413; and 
see Marzetti v. WiUianu, 1 B. & Ad. 416. 
It seems that an attorney, where there is 
no defence, is not justified in omitting to 
put in a plea, but ought to plead the gene- 
ral issue, and watch that the plidntiff 
proves his case against his client, lb. 
Quare tamen, 

(r) Dupen v. Keeling^ 4 C. & P. 108. 
Secut if be bad such authority, although 
the client bad no cause of action. 

(f ) Codrington v. Uoydj 8 Ad. & Ell. 
449. 

\t) 8 WUs. 388. 

(tt) Hartop V. Juciet^ 8 M. & 8. 438. 
See 6 Geo. 4, c. 16, s. 14. He is person- 
ally liable on an agreement to withdraw 



the record, kc. tax costs, kc. and pay 
them. IvetonY,Comngt<m,l B.dcC.l60; 
8 D. & R. 307. 8ee JBurrell v. Janet, 9 
B. & A. 47. Where an attorney selects 
an officer to execute writs, he is personally 
liable to the party so employed. Fatter 
V. Biakelack, 6 B. & C. 388. 

(x) Waller v. Lacy, 1 G. & M. 56. 

(y) RMfU V. Bridife, 3 M. ft W. 115. 
The Conrt will compel an attorney to 
pay the nndersheriff's fees on a commis- 
sion of Innacy, credit having been given 
him in his professional character. Sx 
parte Badenham, 8 Ad. ft Ell. 959. 

(z) Per Bayley, J. Leicester Lent Am. 
1800, PhiUips, 140. And see Capeland^* 
Wattt, I Starkie's C. 06. 



ATTORNMENT. — AVOIDANCE. 



115 



AdaditionM made by an attorney on the record, with a view to the trial of 
the action, as of the execution of a deed or agreement, are eyidence against 
bis client (a) ; but mere admissions in conyersation are not admissible, for 
they are not warranted by a presumption that they were authorized by the 
client (6). So an admission, proTed to be in the handwriting of the attor- 
ney on the record, consenting to a verdict for the plaintiff, will be sufficient 
evidence of the defendant's consent. An admission by the party's attorney 
on record, in a letter written before the action, is not admissible without 
proof of authority {e). 



ATTORNMENT. See 4 Anne, c. 16, s. 9. 

AUGMENTATION. 

A cuRAcr may be proved to have been augmented, by showing an order 
for the augmentation entered in a book, and signed by the governors of 
Queen Anne's Bounty, according to the stat. 1 Geo. 1, stat. 2, c. 10, s. 20, 
without proof that the money was laid out in land, -and allotted by deed 
under the corporation seal of the governor, to be annexed to the curacy^ and 
that such deed was enrolled within six months after its execution, according 
to that statute and the stat. 9 Geo. 2, c. 36 (d), 

AUTERFOITS ACQUIT. Vide mpra. Vol. I. and Index. 

AUTHORITY (e). 

As to the authority of an agent, eee tit. Aobnt. 

Of a partner, tee tit. Partner. 

See also Trespass. — Rbpleviit. 

As to proof of authority to receive money, $ee tit. Patmbn t. 

To griye notice to quit, eee Eibctmbnt. 

Set also tit. Power. 

AVOIDANCE. 

Proof of, when necessary to avoid a license. See Roberts v. Davey, 4 B. 
k Ad. 664. 



(a) Tcmng v. Wright, I Camp. 139. 
GoUie V. Shuttleuforth, 1 Camp. 70. Mil- 
ward V. TtmpUy Ibid. Vide fupro, tit 
Admissions, and Index tit. Admis- 

81098. 

(b) Parkint v. HawkshaWf 2 Starkie's 
C. 239. But when it ia proved that he is 
the attorney of the other party, proof of a 
proposal made by him on bdialf of his 
elkait is admissible. Omn^ford v. Oram- 
moTf 2 Camp. 9. If an attorney appear 
viiboat authority, the appearance is good, 
aod the remedy Is by action. Arum. Salk. 
86. An oi&r by the attorney of the father 
of the defendant, an intSuit, is not admis- 
sible, ahhongh tiie defendant afterwards 
employ the same attorney. JBurghart v. 
Ang9nt€ia,BC,kV,e&0. An ondertaking 



to appear for Messrs. T. k M., joint 
owners of the sloop A., given by the nt^ 
tomey on the record, is evidence of joint 
ownership. Manhall v. Cl\ff^ 4 Camp. 
133. See farther as to admissbns by an 
attorney, TrusUney. JBrutan^Q Moore, 64. 

(c) WagstqgTY, Wilton, 4 B.& Ad. 339. 
Seeuty if the letter from defendant's at- 
torney contains an undertaking to appear. 
Marthal v. Clifff^ 4 Camp. 133. And see 
RdberU v. Gretley, 3 C. & P. 380. Pey- 
ton V. Oovemortqf St, Thomat'sHotpUal, 
3 C.&: P. 363. WUmot v. Smith, 3 C. & 
P. 463. 

(d) Doe d. Graham v. Seott, 11 East, 
478. 

(tf) See Yin. Ab. tit. Authority ; and 
Vernon v. Crew, Cro. C. 67. 
I 2 



116 



AWARD. 



AWARD (/). 

It has been seen that an award regularly made under a submission by 
the parties, operates conclusiTely as a judgment of a Court of competent 
jurisdiction (g). 
Proof of ^° ^° action upon an award, it is necessary to prove the authority con- 

submission, ferred by the parties on the arbitrator, and his making the award. The 
authority may be by paroL If it be by deed, it must be produced, and the 
execution (A) by all (£) the parties to the reference must be proved. To 
prove the appointment of an umpire it is not sufficient to produce the joint 
award of the arbitrators and umpire in which the appointment is recited (j). 

Where four parties agreed to refer the co-partnership accounts, and all 
matters in difference between them, and any two of them, and the arbitra- 
tor awarded that a separate debt was due from il., one of the partners, to B. 
another partner, it was held, that in order to establish the existence of this 
debt it was necessary to prove the execution of the submission by A, and J9., 
and also by the two other partners (A). The appointment of an umpire out 
of two persons whom two arbitrators have chosen by lot is bad, and is not 
cured by an acquiescence of the parties before they knew the fact (/). 

A variance as to the day to which the time for making the award was 
alleged to be enlarged, will not be material (m). 

Where the original time for making the award has been enlarged, the 
plaintiff must show that it was duly enlarged, either in pursuance of autho- 
rity given to the arbitrator by the terms of the submission, or by subsequent 
consent. If the enlargement has been made under a Judge's order, consent 
of the parties must be shown to warrant the order (it). An irregular enlarge- 



(/) No precise form of words is neces- 
sary to constitute an award. Lock v,Vvi- 
liamy, 5 B. & Ad. 600. In debt on bond 
conditioned for tlie due discharge and ac- 
counting by a clerk, to be ascertained by 
the inspection of A,, held that a paper in 
the handwriting of A. showing the de- 
ficiency was in the nature of an award, 
and required a stamp. Jebb v. WKier- 
nuaif 1 M. & M. 340. Where, on refer- 
ence of an action in which several issues 
were Joined, the arbitrator found for 
the defendant on some issiies, but not 
going to the whole cause of action, and 
for the plaintiff on the others, but omitted 
to awanl damages ; held, that the award 
was insufficient, as it was impossible to 
say how the verdict was to be entered. 
Howard ▼. Duncan, 7 DowL 91. But 
where one pica covered the whole cause 
of action, which the arbitrator found is 
favour of the defendant, held, that he iiad 
done right in awarding no damages on 
those issues which iie found fot the 
plaintiff. Socage v. AaJtwiHy 4 M. & W. 
630. See further as to the sufficiency of 
an award, Petoh v. ConUm, 7 DowL. P. 
C. 426. Peieh v. FountaiRy 6 Bing. N. C. 
442. Where the award finds a certain 
sum to be due, but no express order to 
pay it, there being no contempt, the pay- 
ment cannot be enforced by an attach- 
ment, but only by action on the award. 
Seaward v. Howey, 7 Dowl. 318. 



(g) Svpra, Vol. I. Index, tit. Judo- 
ICBNTS. Do€ V. iZoffsr, 3 East 11. Her- 
bert V. Co(Ae, WUles, 36; ttrfroj 86, 
n. (c). Whitehead v. TattereaU, 1 Ad. & 
Ell. 401. Where the parties agreed to be 
bound by the opinion of a profeMJonal man 
upon the oonstroctioa of an act of parlia- 
ment, his decision was held to be final, 
although he recommended that the printed 
statute should be compared with the par- 
liament roll ; and the Court said, tiiat if 
the statute was misprinted, the plaintiff 
(wlio sought to repudiate the arUtimtor's 
decision) should have shown it. Prix v. 
HoUu, 1 M. & S. 105. 

(A) See tit Deed. 

(i) Farr\. (hren, 7 B. ft C. 427. 

0) StiU Sf another t. Ha(fordy 4 Camp. 
17. And see MauU v. Stowell, 16 East, 
99. As to the appointment of an umpire, 
see JBatet v. Cooke^ 9 B. & C. 409. SauU- 
hy V. Hodgson, 3 Burr. 1474. Sucli ap- 
pointment must be the result of the will 
and Judgment of the two. In re Cauelly 
7 B. ft C. 626. 

(k) Antram t. Chaee, 15 East, 209. 

(0 Oreenwood ▼. Titterington, 9 Ad. 
& Ell. 699. 

(m) Swi9\ford ▼. .Bum, 1 Gow. 6. See 

2 Saund. 290, a.; QUbert v. Stamilaus, 

3 Price, 54. 

(n) 5 B. & C. 390, on Motion for an 
Attaclunent. A direction by an arbitrator, 
" I direct that a mla of this court shall be 



AWARD. 



117 



ment iB waired by the subsequent appearance of the parties before the 
arbitrator {o). 

Where the submission is to ^l. and B., and such third person as they 
shall appoint, in order to satisfy an allegation that A. and jB. appointed C, 
it IS not sufficient to produce an award executed by the three, reciting that 
A. and B. did appoint C, even although C acted along with them in the 
arbitration (p). 

Where an award has been made on a reference by rule of court, to prove 
tile order (in the same court) it is sufficient to produce the office-copy of the 
rule, making the order a rule of court (q.) 

Nezty the execution of the award itself must be proved, by means of the Of the 
attesting witness, if it has been subscribed by one, or proof of his hand* A^^^'d. 
writing, and perhaps that of the arbitrator, if the witness be dead (r). 

Where a parish had continued to repair a road within it, notwithstanding 
tn award made by commissioners under an inclosure Act sixteen years ago, 
▼hich awarded that the highway was in a different parish, it was held that 
upon an indictment against the first parish for not repairing the road, it was 
incumbent upon them to prove that the previous notices to the parishes to 
be affected by the award had been given as required by the Act («) ; for the 
repairs subsequent to the award raised a presumption that notice had not 
been given. But in the absence of such a presumption, a presumption 
arises in such a case that the commissioners have done their duty (t). The 
plaintiff is entitled to recover interest from the time of demanding the sum 
awarded, as a liquidated sum (u)^ N otice of the award need not be 
proved, for the parties are bound to take notice of the award (t;)* An in- 
doTsement (unstamped) on an award is a sufficient authority to a- third per- 
son to demand the sum awarded (x). 

The defendant may insist that one or more of the parties to the award Defence, 
were ndnors or married women, and that they were not bound by the sub- 
mission, Guid consequently that there was no mutuality (y). 

The authority of an arbitrator is revocable, and the defendant may show that 
the authority was in fact revoked previous to his making the award (z). 



applied for, by ooimsers hand,, to enlarge 
the tine of miUdng my award,** is of itself a 
sufficient enlargement. JffalUtt ▼. Htdlett, 
5 M. dc W. S5. An irregnlarity as to en- 
largfaig the time is waived by attending 
satneoiieiit meetings before the arbitiator. 

(o) Se Hiek, 8 Tannt 694. LmergnM 
T. Hodgion, 1 Y. &: J. 16. Holdtn v. 
GhmeoeJkj 8 D. & R. 161. 

(p) 8tm V. HtHfordy 4 Camp. 17. 

\q) Ibid, Bat if the action be brought 
in another court, semble^ the role itself 
■bonld be produced* 

(r) Where the^making and publishing of 
an award are sworn to, but without fixing 
the time, the Court wiU presume that it was 
mode fai due time. JDoeY.SHUmeU^QAd.ic 
E1U646. See Pbivatb Wbitiko^ Proof 
of.^ATTB8Tiiio Witness. 

U) n. V. HadingfiM, 2 M. & S. 558. 

(0 According to the general rule. See 
Lord EDenboronghli observations, 2 M. & 
8.561; WiUiamsr. Bast India Company y 
3 Easl^ 192 ; and tit Presumption. As 



to awards under- inclosure Acts, see Doe- 
d. Sweeting v. Hellard, 9 ti. 5cC. 789; 
Mevell ▼. JTodrell, 4 T. R. 424 ; Towniey 
T. Gibton, 2 T. R. 701 ; Doe v, Davidson^ 
2 M. & S. 175. 

(m) Johnton V. BurantyA C. & P. 327. 

(v) 2 Saund'. 62 ; uniess such notice be 
made necessary by the special terms of the 
contract or award. 

(a? )Lan(fmany. Hotmety 2 W. Bl. 991. 

(y) A submission, stated to be an order 
by the Vice^^niancellor in a suit pending 
before him, by consent of the attomies in 
the suit, where some of Ihe parties were 
minors, without any averment (in a decla- 
ration on the award) to show that the next 
friends of the infants took the obligation on 
themselves, is not binding, for it is not 
mutuoL Bidden v. Bmose, 6 B. & C. 2.55 ; 

1 Ch. Ca. 279. 

(z) As by the death of one of the par- 
ties, unless the case be provided for by the 
termsof the ruleor submission. See Pottt v. 
Ward, 1 Marsh. 866; Cooper v. Johnttone, 

2 B. & A. 394 ; Edmunds v. Cox, 2 CbittyV 

I 3 



118 



AWARD. 



Proof in 
defeuce. 



But he cannot go into any collateral evidence to impeach the award (a) ; 
as by showing that the arbitrator acted corruptly or erroneously (b)y 
or as it seems by mistake (e). But he may take any objection which 
is apparent on the proceedings : as that the award is bad for excess of 
authority in the whole or in part (d). So he may show, either by special 
plea or under the general issue, in an action on the award, that the submis- 
sion was obtained by fraud {e) ; or he may object that the award is not final 
or certain (/). 

It is no defence to an action on the submission, that the defendant revoked 
the authority before the award made (^). 

An award made under bonds of submission, that certain premises should 
be delivered up to the lessor of the plaintiff in ejectment, was held to be 



C. T. M. 432. And see In re Hare, 6 
Bing. N. G. 158. Secus, where the arbi- 
trator was merely to settle the amount of 
a verdict previously taken. Sower v. 
Taylor, cited 7 T^nnt. 574. Where a 
stranger to the suit became party to a 
rule by which the parties were bound to 
pay to him or his executors the sum award- 
ed, it was held that his executors were en- 
titled to an attachment, notwithstanding 
his death before the award made. Bogert 
V. Stanton, 7 Taunt 576. A party may, 
after submission even by deed, revoke his 
act previous to the award made. Milne 
V. Gratrix, 7 East, 606. So a party may 
revoke a submission by rule of JVtn Priue 
before it is made a rule of court. Clapham 
V. Higham, 1 Bing. 87 ; 2 B. &. A. 395 ; 
though he would be guilty of a contempt 
in revoking it after it had been made a rule 
of court. Ihid. But if a Judge's order 
direct a reference, and that either party 
wilfully preventing, &c. should pay such 
costs as the Court should think fit, tiiough 
the party may revoke his own submission, 
he cannot revoke the latter part of the 
order. Atton v. George, 2 B. & A. 309. 
An intervening bankruptcy of one of the 
parties held to be no revocation. Andrewe 
V. Palmer, 4 B. & A. 250. In an action 
of covenant for not performine an award, a 
plea that the defendant by deed revoked 
the authority, is good, without expressly 
alleging notice to the arbitrators : for the 
allegation imports notice. Marth v. Buh 
teel, 5 B. & A. 507 ; and see Vynior^t Cote, 
8 Co. 162. It seems, that where power is 
given to an arbitrator to examine the par- 
ties, he may examine those also who ought 
to have been made parties. See Lloyd v. 
Archbowle, 2 Taunt. 324; Campbell v. 
Twemlow, I Price, 81. And although the 
arbitrator may have examined a witness 
not legally competent, the Court will not 
set aside the award. Lairds. Dixon, K. B. 
Mich. T. ] 827. Note, that the verdict had 
been entered on the arbitrator's certificate 
at the assizes, and the ground of motion 
was, that tlie arbitrator, in an action against 
one of the members of a Joint-stock com- 
pany, had admitted the evidence of other 
members of the company for tlie defendant. 



On motion for an attachment, the Court 
will not notice objections not appearing 
on face of award. Maearthur v. Camp- 
bell, 2 Ad. & Ell. 52. The ordering a sum 
of money to be paid on a Sunday does not 
vitiate an award. Hobdell r. Miller, 6 
Bing. N. C. 292. 

(a) In re Cargey, 2 D. ft B. 222. For 
the plaintiff woiUd be unprepared at the 
trial. The plea in that case was nil dAel, 
The remedy in case of partiality or corrup- 
tion is by application to the Court, or by an 
action against the arbitraton. Ilnd. ; and 
see SwUiford v. Bum^ I Gow, 5. Where 
evidence had been taken at a meeting ii^ 
regularly convened, and at which the par- 
tis did not attend, but it was afterwards 
struck out, and the arbitration proceeded, 
the Court refused to set the award aside. 
Kingwell t. Elliott, 7 Dowl. 423. 

(b) This at all events cannot be done 
where application might have been made 
to the Court to set the award aside on that 
ground. Braddick v. Thonqtson, 8 East, 
344. WiUs V. Maecarmitk, 2 Wils. 148. 

(c) Aihton v. Poynter, 1 C. M. & R. 
738. Johnson v. Durrani, 2 B. & Ad. 
981. 

(d) Bonner t. lAddell, 1 B. & B. 80. As 
where, according to an agreement for a 
lease, the term was to be for 63 yean ; 
but there was to be no payment of rent for 
the first three yean, and the arbitrator 
authorized to direct a lease to be executed 
according to the agreement, awarded the 
execution of a lease for 63 yean, to com- 
mence from the payment of rent. 

(e) Saekett v. Owen, 2 Chitty's R. 89. 
(/) WUU V. Maeearmick, 2 Wfls. 

148. Vide tupra, p. 118, note (b)» See 
further Ron v. Boards, 8 Ad. k EIL 
290; Wyhes r. Shipton, 8 Ad. & £11. 
246, n. ; Brown v. Croydon Canal Co., 
9 Ad. & Ell. 422; Taylor t. Shuttle- 
foorth, 6 Bhig. N. C. 277 ; Seceombe v. 
BalOf, 6 M. & W. 129; Oisbom v. Hart, 
5 M. & W. 50. 

(g) Brown v. Tanner, 1 M. ft Y. 464. 
For a revocation of authority is a breach 
of an agreement to perform an award. See 
Grazebrook v. Davis, 5 B. & C. 534. And 
see Doe v. Homer, 8 Ad. & £11. 236. 



AWARD. — BAIL-BOND. 



119 



conclusive as to his right (A). And in general, an award made under com- Proof in 
petent authority is binding and conclusiye upon the parties (i). And before defence, 
the new roles it was evidence under the general issue in assumpsit. 

But an award, although under a submission of all matters in difference, 
will not be conclusive upon any matter which was not at all contested before 
the arbitrator (A). And the arbitrator may be examined in order to prove 
that no evidence was g^ven upon a particular subject (/). An award made 
upon a parol submission^ is evidence under a count on the original demand (m), 
or on the account stated (n). An arbitrator may demand a compensation 
for his trouble, and the plaintiff may compel contribution from the parties (o). 
An agreement by parties to refer all disputes that shall occur, does not oust 
the jurisdiction of the courts of law or equity (p). 

Property awarded to be delivered up on payment of a sum specified, in 
satisfaction, does not vest on tender of the money, which is refused, and 
therefore the party entitled to the property cannot maintain trover, but must 
bring an action on the award (q). 

BAIL(r). 

The bail of a party are incompetent, from interest, to give evidence for 
him(«). Where the testimony of one or both the bail is necessary, the party, on 
application to the Court, may substitute another in his place, and so render 
him competent (t), 

BAIL-BOND. 

The plaintiff in an action on a bail-bond, whether he be the sheriff, or his 
assignee, under the plea of mm est factum, need prove the execution only (li), 
in the ordinary way. If the defendant plead that the bond was taken for 
ease and favour, and the plaintiff reply that it was taken for the security of 
his prisoner, and issue be joined thereon, slight evidence will, it is said, 



(A) Doe V. Rotter, 3 East, 11. 

(i) See Campbell v. Twemlou), 1 Price, 
81; 6.Ve».2a2; 9Ve9 364; 14Ve8.271; 
1 Swanst 55. Price v. HoUit, 1 M. & S. 
105. Where an action of debt, to which 
thegeoeral issue and a set-off werepleaded, 
vBs refienred, ** the costs of the reference 
and of the award to abide the event/' and 
the arbitrator found that the plaiatiff had 
00 caase of action, and not entitled to re- 
cover in the action, but the award was 
lOent as to the setoff; held, that the 
award was final, and the defendant en- 
titled to recover the costs; the event, 
being taken to mean the event as to the 
action, and not as to the determination of 
particolar issues, which the arbitrator was 
Dot distinctly required to do. Duckworth 
V. Harriton, 4 M. & W. 432 ; and 7 Dowl. 
71. 

(A) Ravee v. Parmer, 4 T. R. 146. Mar- 
ten V. Tkcmtan, 4 Esp. C. 160. But sec 
Dtoin ▼. Murray, 9 B. & C. 780; Lord 
Hllenborough's observations in Smith v. 
Johnton, 15 East, 213 ; Seddon v. Tutap, 
6 T. R. 610. 

(0 Martin v. Thornton, 4 Esp. C. 180, 
tor, Ld. Alvanley. But in Johnton v. 
J)Mrant, 4 C. & P. 237, it is said that he 



cannot be asked under what impression he 
made his award. 

(m) Kingtton v. Phelpt, Peake's C. 
327. 

(n) JMd. 

(o) Swiitford v. Bruce, 1 (low, 5. 

(p) Thompton ?. Chamock, 8 T. R. 189. 
KiU V. Hollitter, I Wils. 120. Wellington 
V. Maeintoth, 2 Atk. 585. 

(q) Hunter v. Rice, 15 East, 100. 

(r) The refusing ball where it ought to 
be granted, is a misdemeanor, and the sub- 
ject of an action or indictment ; 2 Haw. 
c. 15, 8. 13. 

(«) 1 T. R. 164 ; 2 Esp. C. 606. Collett 
T. Jennert, Rep. temp. Hardw. 133. 

{t) Tidd's Pr. 264. Collett v. Jennert, 
R. T. Hardw. 133. This is done by an ap- 
licatien to the Court, on affidavit, stating 
that the witness is a material one, upon the 
terms of adding and justifying another. 

(ti) But if the plaintiff should Inadvert- 
ently have joined issue upon the plea of nil 
debet, instead of having demurred, he wilL 
it is said, be bound to prove all the aver- 
ments in the declaration, the issuing the 
writ, the arrest, the execution of the bond, 
and the assignment, if the action be brought 
by the assignee. Qu. 

I 4 



120 



AWABD. — BAHKBUPTCY. 



BaillMDd. 



Proofs by 
aMignecs. 



maintain the replication (x). Upon a plea of compenat ad diem^ the appear- 
ance, being matter of record, is tried by the record (y). 

When the defendant pleaded that there wae no assignment of the bond by 
the sheriff or undersheriff, it was held that the seal (of office) to the assign- 
ment was sufficient whoever had signed it {z). 

Where the bond is taken by the sheriff after the return of the writ, it is 
void ; since the condition is, that the defendant in the original action shall 
appear at the return of the writ, which is impossible. The defendant may 
take advantage of the defence under the plea of non utfajctwm^ by producing 
the writ, or ralying upon the statement of the writ and return on the 

record (a). 

The bail are estopped from saying that there was no arrest. A return of 

€it inventus^ after the taking and before assigning the bond, may make 

the sheriff liable for a false return, or be the foundation for an application 

to the Court to set the bond aside, but cannot come in question in an 

action on the bond (b). 

Bail are not discharged by the plaintiff's taking a cognovit from their 
principal, without their consent or knowledge, unless by the terms of it he is 
to have longer time for payment of the debt and costs than by regularly 
proceeding in the action (c), 

BANK, JOINT STOCK. See St. 7 G. 4, c. 38, and tit. Pabtnbrs. 

BANKRUPTCY. 

Unobb this head may be considered: — Ist, Proofs in actions 2ry the a«- 
signees. — ^ly, Those in actions by creditors or others agabut the aesigneei, — 
ddly, Those in actions between the bankrupt and creditor8.^-4thly, Those on 
indictments against the bankrupt. — 5thly, The competency of witnesses, &c. 

I. Of proof 8 by Assignees. Assignees sue either in their representative 
character, or in their own right. If they claim in their character of assig- 
nees, they must (if their character be put in issue) (d), prove tliemselves to 
be such. The fact that commissioners have already declared the party a 
bankrupt is not even prima facie evidence of the bankruptcy, for they act 
upon ex parte evidence, and have a mere authority without jurisdiction, and 
consequently their determination is not in the nature of a decree or judgment 



(x) 1 Sid. 988. See 1 Saand. 162 ; 1 Lev. 
254 ; Com. Dig. Pleadeb, 2 W. 25. 

iy) Tlie plea is proved by the prodno- 
tion of t|ie recognlzanoe roll, containing 
an entiy of the appearance. Whittle v. 
OldaMer, 9 B. & C. 478. If the issue de- 
pend on the date of the appearance, the 
Court of C. P. will order the date of the 
appearance to be entered on the filazer's 
book, although before the application to 
the Court, issue has been joined on the 
plea of comperuit ad diem. Autteny, 
Penton, 1 Taunt 23. 

(z) Harris v. AshUy, 1 Sel. N. P. 564, 
cor. Lord Mansfield. And on a traverse 
of the assignment, it is not necessary to 
show that the witnesses subscribed their 
names in the presence of the officer exe- 
cuting the assignment PhiUipt v, Bar^ 
low, 1 Bing. N. C. 433. 

(a) 4 M. & S. 338. For other evidence 



on the plea of mm ettfaetum,see tit Dbed. 
— Now BST Factum. 

(b) Taylor v. Clow, lB.k Ad. 228. 

(c) Stevenson v. Roche, 9 B. & C. 707. 

(d) By the rule H. T. 4 W. 4, hi aU 
actions by and against assignees of a bank- 
rupt or insolvent, or executors or adminift- 
trators, or persons authorized by Act of 
Parliament to sue or be sued as nominal 
parties, the character in which the plaintiff 
or defendant is stated on the record to sue 
or be sued shall not in any case be con- 
sidered as in issue unless specially denied. 
A plea to a declaration in trorer by the 
assignee of a bankrupt puts in issue the 
petitioning creditor's debt, trading, and 
act of bankruptcy, as well as the phuntifTs 
appointment as assignee. Butler v. Hob' 
son, 4 Bing. N. C. 290. Buckton v. Frost, 
1 P. & D. 102. 



BANKRI7PTCT: PROOP0 BY A08IGNBBS. 



lai 



by a Coori of competent authority (e). But where the assignees declare Proofs liy 
apon a cause of action which accrued after the bankruptcy, without dis- usignees. 
cribing themselyes as assignees, no eyidence of title is necessary (/). 

To establish their title to the bankrupt's property, they must prove, 
1. The commission or fiat {g). 2. The trading. 3. The act of bankruptcy. 
4. The petitioning creditor's debt. 6. The appointment of assignees* 



(e) Ld. Rayxn. 580. 8ee Bonhaw^i 
Catty 8 Coke, 114, CaHis. 216. The act 
of 8 Judge is not tiaTenable if he be the 
absoUte Judge of the cause; teau, in cases 
for a efTiiiirate by such as be no absolute 
Judge of the cause, as eommissioner of 
bukrupt. Banhemet date, 8 Coke, 114. 

(/) Bvant ▼. JfoiiyCowp. 609, B.N.P. 
37. Thomat t. Bidemg, Wightw. 66. 

{g) By the Stat. 1& 2 W. 4,0. 66, 8.12, 
fte Lord Chancellor is empowered, on pe- 
tition, and on filing such affidavit and 
giving such bond as the law requires, to 
Moe his flat under his hand, in lien of a 
eoonaiiaion; and by see. 18, such fiat, 
prosecuted in the Court of Bankruptcy, 
ib&n be filed and entered of record in the 
Aid eonrt, and it shall thereupon be law* 
fil for any oae or more of the commis- 
ttooers thereof to proceed thereon in all 
ntpeets as commissioners, &c. 

By sec 28, the Judges of the Court of 
Bsakmptcy are to seal all such proceed- 
ings, documents, and copies as are required 
to be sealed. 

By see. 29, a oertifleate of the appoint- 
ment of assignees, purporting to be under 
the seal of the said court, shall be recdyed 
as efidence of such appointment, without 
farther proof. ^ 

The St. 2 Ac 3 W. 4, c. 114, recites that 
the pioTisions of the st. 6 G. 4 (ss. 96 
>od U7), had been found defective, and 
that no proTlaion had been made in the 
1 & 2 W. 4 for entering of record flats and 
other proceedings not prosecuted in the 
Court of Bankruptcy; and enacts, that 
the records of all commissione of bank- 
rapt, and all proceedings under the same 
whidi may have been beretofore entered 
of record, pursuant to or under colour of 
the St 6 G. 4, c 16, or any other Act, 
shall be removed into the Court of Baak- 
raptcy, and shall be kept as records of the 
nid court, in such place as the Judges 
of the said court shaU from time to time 
direct; and it shall be lawful for the 
Jedges of the Court of Bankruptcy to 
aouSnate the person heretofore appointed 
by the liord Chancellor, to enter such 
proceedings of record ; or in case of his 
Rfuaal to accept such office, some other 
iitaad proper person as the clerk of enrol- 
nent to the said court; and that such 
clerk of the enrolments, and his succes- 
•on, ahsll hare the care and custody of 
■U tihs said records so removed, and shall 
in like maimer enter of record all matters 
ud proeeediogs in bankruptcy wliich by 
thk Actor the said recited Acta (6 G.4, 
c. 16, and 1 Sc2 ^^. 4, c. 36), or by any 
order made in puranance thereof^ are or 



may be directed to be entered of record, 
upon payment of the fees thereinafter men- 
tioned. 

Sect 2 provides that all commissions of 
bankruptcy issued before the Ist day of 
Sept 1826, and all depositions and other 
proceedings relating to such commissions, 
directed to be enrolled, and actually en- 
tered of record upon or since that day, 
shall be deemed and taken to have been 
well and effectually entered of record. 

Sect 3. Provided nevertheless, that the 
certiflcate of such entry, purporting to be 
signed by the person appointed to enter 
such proceedings, or by his deputy, shall 
have the same effect as if such commission 
had been issued alter the sidd 1st day of 
Sept 18S6, and shall be received in evi- 
dence, without proof of the appointment or 
handwriting of such person. 

Sect. 4. Any Judge of the Court of 
Bankruptcy may direct such officer to 
enter upon the records of the court any 
commission of bankrupt at any time here- 
tofore issued, and the depositions and pro- 
ceedings had and taken under the same, or 
such part or parts thereof as such Judge 
shall think fit ; provided, that such officer 
may enter of record the several matters 
directed by the said recited Acts, or either 
of them, upon the application of any party 
interested therein, without any 'special 
order. 

Sect 6. AH fiats already issued, or to 
be hereafter issued, to be prosecuted else- 
where than in the said Court of Bank- 
ruptcy; and all abjudications of bank- 
ruptcy by the persons named in such flats 
to act as commissioners ; and all appoint- 
ments of assignees, and certificates of con- 
fbrmity made and aUowed under such 
flats, may and shaU be entered of record 
in the sidd Court of Bankruptcy, upon the 
application of any party interested therein, 
on the payment of the fees thereafter men- 
tioned, without any petition; and that any 
one of the Judges of the said court may, 
upon petition, direct any deposition or 
other proceedings under such flat to be 
entered of record as aforesaid. 

Sect?. In the event of the death of 
any of the witnesses deposing to the peti- 
ticming creditor's debt, trading, or act of 
bankruptcy, under any commission or flat 
already issued, or hereafter to be issued, 
it shall be lawful for the assignees ap- 
pointed under such commission or flat, and 
for all persons claiming through or under 
them, or acting by or under their authority 
in the cases heroifter mentioned, to pro- 
duce and read in evidence in all courts of 
civil judicatore, and in all civil proceed- 



122 



BANKBUPTCT : PROOFS BT ASSIGNEES. 



Flat. 



Fbnt. The commission or fiat is proyed by the production of the com- 
mission or fiat itself, recorded according to the statute, or by an office-copy (A). 



logs in maintauuioe aod support of such 
commission or fiat, any deposition of such 
deceased witness relattye to such petition- 
ing creditor's debt, trading, or act of bank- 
mptcy, wliich shall have been doly entered 
of record porsoant to tlie proriaions of the 
said recited Acts or of this Act ; and the 
production or reading of snch deposition, 
or of any copy thereof duly anthtrnticated 
according to the provisions of .the said 
recited Acts or of this Act, shall have 
the same eflbct as if tlie matters therein 
had been deposed to by the same witness 
in such court according to the ordinary 
course and practice thereof: Provided 
always, that tJie besfore-mentioned deposi- 
tions shall be read in evidence in such 
cases only where the party using the same 
shall claim, maintain, or defend some right, 
title, interest, claim, or demand which the 
bankrupt might have claimed, maintained, 
or defended in case no commission of bank- 
rupt or fiat liad issued, and shaU not be 
road in evidence in any action or proceed- 
ing now pending, by wiiich.the validity of 
any commission or fiat is or may be brought 
into question. 

Sect. S. No fiat nor any adjudication of 
bankruptcy or appointment of assignees, 
or certificate of conformity under such fiat, 
shall be received in evidence in any court 
of law or equity, unless the same sliall have 
been first entered of record in the Court of 
fianiuiiptcy aforesaid. 

SecL 9 provides, that upon the produc- 
tion in evidence of any commission, flat, 
adjudication, assigoment, appointment of 
assignees, certificate, deposition, or other 
pro^eding in bankruptcy, purporting to 
be sealed with the seal of the said Court 
of Bankruptcy, or of any writmg purports 
ing to be a copy of any such document, 
and purporting to be sraled as aforesaid, 
the same shall be received as evidence of 
such documents respectively, and of the 
same having been so entered of record as 
aforesaid, without any fiirther proof thereof : 
Provided nevertheless, that all fiats and 

Eroceedings under tlie same, which may 
ave been entered of record before the 
passing of this Act, shall and may, upon 
the proiduction thereof, with the certificate 
thereon, purporting to be signed by the 
person so appointed to enter proceedings 
in bankruptcy, or by his deputy, be re- 
ceived as evidence of the same having been 
duly entered of record, anything lierem 
contained notwithstanding. 

Where an action was pending, and be- 
fore the late Act, the party applying was 
entitled to have the proceedings produced 
for the purpose of their being given in evi- 
dence upon a tubpana dueet tecum : the 
assignees when called upon are bound to 
have the proceedings enrolled at the re- 
quest of the parties interested, and if they 
refuse, it is at tho peril of costs ; but in 



such cases the application to the Court 
against them most be by petition, and not 
by motion. JEx parte JohnMUme^ 1 Mont. 
& M. 82. It was held that the courts of 
law liad no jnrisdietian under sections 95 
& 96 of the Stat 6 G. 4, c 16. Joknmm 
V. OiUett, 6 Ring. 6, and 2 M. & P. 8. 
Where the title appears in the aasignmeBt 
from the provisional assignee and the com- 
missioners, to the general assignee, it is not 
necessary to enrol the provisional assign- 
ment. Bx parte Martmf 1 MonL B4. 
A commission against a minor cannot be 
supported. (TBrien v. CurrU, 3 C. & P. 
883. It is not merely voidable, but void. 
^aiofiv.^od^9^ng.366. Theparty 
is described in the commisrion as a money- 
scrivener only; it was held the plaintiff, 
in an action to try its validity, is not pre- 
cluded by the limited description in the 
commission from proving any species of 
trading. {Per Bohoyd, J. ) Smiihy. San- 
dUandSy 1 Qow,C. 171. Assignees under a 
second commission, the Ibnner one exist- 
ing, and no certificate obtained, seiaed 
certain goods of the bankrupt ; it was held 
that, to a replication stating the former 
banlurnptcy, a rejoinder that the goods were 
in the order and disposition of the bank- 
rupt by the permission of the first assig- 
nees, was bad, the second commission betng 
void. Ndeon v. CherreUy 7 Bing. 663; 
see Foujier v. Cotter^ 10 B. & C. 427, 
and TUl v. WUsoHj 7 B. & C. 684. A 
commission issuing at the instance of the 
bankrupt, was held, notwithstanding the 
6 Geo. 4, c 16, to be supersedable. Es 
parte Oane, 1 Mont. & M. 401 ; over- 
ruling the former judgment by the Vice- 
chancellor, d Gl. & J. 319. A joint com- 
mission issued against two, describing 
them as coal-merchants, of, kc.; it ap- 
peared they had dissolved paitnership three 
years before, and had since been engaged 
on separate forms ; and it was held that 
the description was insufficient, JEx parte 
BaMfy 1 Mont k. M. 908. Where a Jomt 
fiat was taken out against two, oneaniiH 
font, the Court allowed it to be annulled, 
either as to him only, or generally. Wei" 
soil, expartey 3 Mont. & A. 68S; 3 Desc 
277. 

(A) The Stat. 6 G. 4, c. 16, s. 95, enacts, 
that all things done pursuant to the Act 
passed in the 5th G. 2, be confirmed, and 
that the Lord Chancellor shall have power 
to appoint a proper person, who shall by 
himself or his deputy enter of record all 
matters relating to commissions, and have 
the custody of the entries thereof See. 96 
enacts, that no eommiaeion qf bank' 
ruptey, ad^udieaHon of bankruptcy, or 
ateignment of the personal estate dT the 
bankrupt, or certificate of conformity, 
shall be received as evidence, unless the 
same shail have been entered of record (in 
the registry appointed by the Act, sec. 95). 



DEPOSITIONS, &C. 123 

It has been held that assignees under separate commissions against A, Fiat 
and B.y who declare for goods sold and deliyered by both the bankrupts, 
aod also for goods sold and deliyered by each, cannot recover in respect of 
the latter in addition to the former ; for, suing in a representative capacity, 
they cannot, it was said, join rights of action in which those whom they 
represent could not haye joined (t). And assignees under separate commis- 
sions against A. and B, cannot state themselves to be joint assignees (A); but 
the assignees under a joint commission against A, and jB. may describe them- 
selves as the assignees of either as well as of both, and in the same action 
they may recover joint as well as separate debts {I), But if they describe 
themselves as assignees of both, and state promises to both, they must prove 
the bankruptcy of both (m). Assignees under a joint commission against A. 
and B., and also under a separate commission against C, may recover a 
debt due to the three (n). If the plaintiffs sue in trover as the assignees of 
A, and JB., on the joint possession of both, they cannot recover separate 
property (o). 

The appointment of a former assignee having been vacated by the Chan- 
eelloT, and a new one appointed, the latter is assignee by relation, and may 
sue on a contract made by the former assignee (p). 

The plaintiffs, according to the usual order of proof, next proceed to prove proof where 
the several requisites of bankruptcy. But under the provisions of the late no niitice 
statute such proof is unnecessary, unless due notice has been given of the ^f^ heen 
intention to dispute those facts, and even then they may be proved in some ^^ statute. 
cases by means of the depositions taken under the commission. 

The statute 6 G. 4, c. 16, s. 00, enacts (q), that in any action by or against any 



The same section provides, that on the 
prodaction in evidence of any instrument 
so directed to be entered of record, having 
the certificate thereon purporting to he 
signed by the person appointed to enter 
the sanie, or by his deputy, the same shall, 
without any proof of such signature, be 
reeeiTed as evidence of such instrument 
having been so entered of record. — By the 
07th section it is enacted, that in every 
action, suit, or issue, office-copies of any 
original instrument or writing filed in the 
oil^e, or officially in the possession of the 
Lord Chancellor's secretary of bankrupts, 
shall be evidence to be received of every 
such original instrument or writing re- 
spectively; and if any such original in- 
strument or writing shall be produced on 
any trial, the costs of producing the same 
shall not be allowed on taxation, unless it 
appears that the production of such original 
instrument or other writing was necessary. 
— the 9ame stat., s. 80, enacts, that in any 
commission against any one or more mem- 
ber or members of a film, the Lord Clian- 
cellor may, upon petition, authorize the 
assignees to commence or prosecute any 
action at law, or suit in equity, in the 
names of such assignees and of the remain- 
ing partner or partners, against any debtor 
of the partnership, and may obtain such 
judgment, decree, or order therein, as if 
vkSk action or suit had been Instituted 
with the consent of such partner or part- 
ners ; and if such partner or partners shall 



execute any release of the debt or demand 
for which such action or suit is instituted, 
such release shall be void. 

(t) Hancock v. Haywoody 3 T. R. 433 ; 
but see note (Z). 

(k) Bay Y. BavieSf 2 Moore, 3. 
• (l) Graham v. Mulcaster, 4 Bing. 115. 
Scott V. Franklin, 15 East, 428. Smith 
V. Goddardy 3 B. & P. 465. Harvey v. 
Morgan, 2 Starkie's C. 17. Ston^ime 
V. De Silva, 3 Camp. 300. 

(m) Hogg v. Bridget, 2 Moore, 122. 
Note, that it vras held in ttiis case that the 
assignees of A. and J9., under a Joint com- 
mission, could not sue for the separate 
property of either; but see the cases 
note (I). Vide tit. Troybs. 

(n) Streatfield v. HaUidayfiT, R. 770,n. 
that this was after verdict In AlUn v. 
Hartley, 3 T. R. 780, it was held, that a 
commission against two or three partners 
could not be supported. Hut now see the 
late stat 6 0. 4, c. 16, s. 80. 

(o) Cock v. Turner, London Sitt. after 
Hil. 41 G. 3, cor, Ld. Ken. Sel. N. P. 1204. 
Vide tit Trover ; and see 2 Saund. 
47, n. 

(p) Alldriffy. Kettridge, 1 Bing. 355. 

(q) The statute is prospective only, and 
applies to such commissions only as are 
issued after the passing of that Act Key 
v. Cook, 2 M. & P. 720. Hay v. Good' 
toin, 6 Bing. 676. Where a commission 
against T. issued upon the petition of the 
assignees of K., who, after an action of 



124 



bankruptcy: proofs in actions bt assignees. 



assignee (r ), or in any action against any conmiiasioner, or person actingnnder 
tile warrant of the commissioneriy for anything done as snch commiseioner, or 
vnder mchwtLmnt, no proof shaB be requtredBt the trial odhe petitioning ere* 
dxior'e debt or debtt, or of the trading or act or a^ts of bankruptcy respeetvoelyy 
unless the other party in such action shall, if defendant^ at or hforepiteadbng {8)j 



trorer hnmgtat by tbem to neoYer the 
goods of 2ly and a notice to dispate giveiiy 
finding their debt as petitioning creditors 
insnffieient, applied to the Lord Chancellor, 
ander 6 Geo.4y c 16, s. 18, that upon satis- 
factory pioof of an existing debt to M^ the 
commission might be pitweeded in ; upon 
which an order to that effect was made, 
and at the trial, in oider to support the 
commission against Jr.,the plaintiffii merely 
produced the proceedings under his commis- 
sion; it was held, first, that as the plaintiff 
sued as assignees of T., and not as assignees 
of jr., those proceedings were not admis- 
sQile, the 91st and 92d sections being con- 
fined to actions brought by the bankrupt's 
Qwn assigaees, for a debt or demand for 
which he might hare sued. Secondly, that 
the order of the Lord Chancellor, not having 
found atkt debt judicially insufficient, and 
hofiagbeen obtained only on the consent 
of JIf . and the assignees on the one hand, 
and the petitioning creditor on the other, 
and wiUiout notice to the defendant, who 
therefore was not apprised that he was to 
meet the substituted debt, was not a valid 
order. Mtukett ▼. Drummondy 10 B. & C. 
153. See also as to the itrst point, Sha\f€ 
y. Howard^ 2 B. & C. 860. The depo- 
sitions are made concluslTe eTidence in all 
actions in which the bankrupt might hare 
sued, and evidence to the contrary is ex- 
cluded. Evidence to show that the peti- 
tioning creditor's debt was a firaud and 
contrivance, is inadmissible. Young ▼. 
Timnwu, 1 Cr. & J. 148, and 1 Tyr. 15. 
The same was held in the case of Qlooer ▼. 
Harrison^ eor, Bayley and littledale. Just, 
of the C. P., at Lancaster, January 1830. 
Where the defendant received goods from 
the bankrupt to keep until he wanted them, 
and be had never made any demand, but 
the assignees had, before bringing the ac* 
tion (of detinue)^ it was held to be imma- 
terial whether the action were brought by 
the bankrupt or his assignees ; and that 
the proceedings were conclusive of the 
trading, kc. under the 92d secL of Geo. 4, 
c. 16. Smith ▼. Woodward^ 4 C. & P. 541. 
The deposition of the petiUoning creditor 
(on bills drawn and indorsed by the bank- 
rupt), not showing that they were indorsed 
to the petitioning creditor before the act 
of bankruptcy, is insufficient; being now 
made conclusive evidence of the facts ther^ 
in contained, the deposition in support of 
such debt must show evidence of the exist- 
ence of the debt upon the foce of it Key 
y. Cooky 2 M. & P. 720. The depositions 
an conclasive where the bankrupt gives 
no notice, although the action was com- 
menced before the time for the bankrupt 



giving notlee had expired, if the thae has 
expired befote the txiaL Sndthr.Sekroe- 
d:er,lHood.&M.C.24. Where the bank- 
rupt might have sued In trover for g^oods 
deposited with the defendant, althongh the 
conversion took place alter the act of bank- 
ruptcy, the depositions are conclusive evi- 
dence. Flox V. Mahoney, 2 Cr. Sc J. 325. 
Hie depositions are conclusive if the bank- 
rupt himself miglit have maintained the 
action, although the record does not show 
it ; as where the action is brought to re- 
cover the value of goods sold for eeuh by 
tlie bankrupt to a creditor, who, as W8» 
alleged, intended to retain the amount in 
firaud of the contract, and where the plain- 
ttSh declared on two counts tn trover upon 
possession by tlie bankrupt, and conver- 
sions before and after the bankruptcy. 
Kitchener v. Poufer^ 3 Ad. ft EH. 232; 
4 N. & M. 710. Where depositions were 
nsed, and not objected to on the trial, and 
when additional evidence, if necessary, 
might have been adduced ; held, that It 
was afterwards too late to o^ect thai they 
were hisnfficient to establish the act of 
bankruptcy. Jacobs v. Laioitr, 2 M. & P- 
203. 

(r) The statute extends to cases where 
other defendants besides the assignees are 
joined in the action. See Oilman v, Cour 
tins and others, 2 Starkie's C. 282 j; Smith 
y. Nieholson, York Ass. cor. Richards, 
C. B. and afterwards by the Court of Ex- 
chequer. 

(f ) It seems that notice given with a plea 
de novo would be sufficient. De Charme 
V. Lane, 2 Camp. 324. If no notice has 
been given before the delivery of the plea, 
the drart will give the defendant leave to 
withdraw the plea, in order to plead again 
with notice. JRadmore v. Oould, 1 Wig^tw. 
80. Pooie V. jBe/^ 1 Starkie's C. 32a A 
defendant who has delivered his plea with- 
out notice, cannot, even before the time 
for pleading is expired, re-dellver his plea 
with notice. Ibid Notice is necessary in 
an action against the assignees, (as by the 
bankrupt to try the question ofbankroptcy,) 
although the defendants are not described 
as assignees upon the record. Simnumds 
V. Knight, 3 Camp. 251. Where the plea 
was ddivered by mistake without a notice 
to dispute the bankruptcy, and notice of 
disputing on the same day was tendered 
and reftised, although before the thne for 
pleading had expired, it was held to be 
insufficient; the defendant should have 
moved to withdraw the plea, in order to 
plead de novo. Lawrence v. Croieder, 3 
C. & P. 220; see also Folkes v. Scwtder, 
3 C. & P. 232. 



BANKRUPTCY : PROOFS IN ACTIONS BT ASSIQNBB8. 



125 



and \Splamiiffbef&re issue joined (t), give notice in writing to such assignee (u), Proof by 
coounissioner or other person, that he intends to dbpute some, and which (x), ^^P^^ 
of such matters ; and in case such notice shall have been g^ven (y), if sndi 
udgnee^comniiBeioner or other person shallproye the matter so disputed, orthe 
other party admit the same, the Judge before whom the cause shall be tned(g\ 
may (if he thinks fit) grant a certificate of such proof or admission ; and such 
Bflsigneey commissioner or other person, shall be entitled to the costs, to be 
taxed by the proper officer, occasioned by such notice; and such costs shall, 
if such assignee, commissioner or other person shall obtain a verdict, be added 
to the costs ; and, if the other party shall obtain a verdict, shall be deducted 
firom the costs which such other party would otherwise be entitled to receive 
from such assignee, commissioner or other person. 

The 92d section enacts, that if the bankrupt shall not (if he was within 
the United Kingdom at the issuing of the commission) within two calendar 
months after the adjudication, or (if he was out of the United Kingdom) 
within twelve calendar months after the adjudication, have given notice of 
liif intention to dispute the commission, and have proceeded therein with 
dae diligence, the depositions taken before the commissioners at the time of, 
or previous to, the adjudication of the petitioning creditor's debt or debts, 
and of the trading and act or aets of bankruptcy, shall be conehuive 
evidence (a) of the matters therein retpeetioehf coniained, in all actions at law 
or smis m equiijfy bronght by the assignees for any debt or demand for which 
the bankzxipt might have sustained (b) an action or suit (c). 

If no notice of the intention to dispute any of the ingredients of bankruptcy 
has been given, according to the 90th section, the focts stand admitted as 
legards the validity of the commission or fiat (d). 

If due notice has been given under the 90th section, the plaintifis must 



(0 Notice by the phdntiff, served at the 
time whea the issue is deliyered with notice 
of trial, would, it seems, be too late. Riek» 
mend ▼. Hetiqfy, 4 Camp. S07. 

(a) Serrice of notice on a maid-eenrant at 
thedweUiag-hoose of the assigneeywas held 
to be tnsoffieieot, under the stat. 49 O. 3, 
c. 121, iw 10. Howard v. Banuhottom^ 3 
IWiot 5S6. Service by delivery to a clerk 
at the defendant's coimting-hoose, before 
iaae jofaied, was held to be snfllelent, witb- 
oat proof that it eame into the defendaatiB 
bnda. Widger v. BrouminQ, JUL, & M. 
27. Service on the attorney is snffieientL 
Boward v. Bamdfottom, 3 Taunt. 590. 
IW notice mnst be specific ; it is inBoflft- 
deat to give general notice of inteotion to 
ilupate &B bankruptcy. Trimley v. Unr- 
MM, 6 B. & C. 687. A plea that F. was 
not duly dedarsd a haakrapt does not ope> 
nte asaoliee. Raphael v. Moon, 7 C. & 
P. 115. 

(x) Ifotioe having been given to dispute 
the act of baakniptey only, and the depo* 
aitions having been read to prove the trad- 
ing and petitioning creditor's debt, the 
roddneof the proeeedings is not considered 
to be in evidence, and the counsel of the 
party coatssting the cause has no right to 
intpeet them. BlwA v. Thome, 4 Camp. 
191. Stqfford v. Clarke, 1 C. & P. 26. 

(y) Ketiee is no part of the defendant's 
eridenaa la the cause, but may be proved 



at the outset, and will put the plaintiff on 
■triet proofl Ducharme v. Jkme, 2 Camp. 
823. 

(z) The Judge, on a reference of the 
cause before trial, cannot certify. Bar" 
thorp V. Anderson, 8 Bing. 268. 

(a) Barith v. Schroder, M. & M. 26 ; 
Eden, 370. 

(6) Where part of the claim for which 
the bankrupt might have Buatained an ac- 
tion, could not have been recovered by the 
bankrupt, the proceedings, after notice, are 
not sufficient proofof the trading, &c.; and 
if there be no other proof, the plaintiffs must 
elect to go only for such part of the claim 
as the bankrupt might have recovered. 
They must, in such case, abandon counts 
on their own possessioa as assignees. CHb~ 
son V. Oldjfield, 4 C. & P. 313. Jones v. 
Fort, 1 M. & M. 106. Notice left at the 
counting-house of the party in London with 
his clerk is suiRcient Widger v. Brown- 
ing, 1 M. dc M. 27. Proof that the party 
is an uncertificated bankrupt under a 
former commission stiU in force, is admis- 
sible without notice. Phillips v. Hop- 
wood,! B,& Ad, 619. 

(c) An action of q}ectment is within 
these words; per Lord Tenterden, C. J. 
sitt. after Easter T. 1827. 

{d) In an action by assignees against 
the sheriff, for the proceeds of a levy under 
a ft, fa., after an act of baokruptcy, no 



126 



BANKRUPTCY : PROOFS IN ACTIONS BY ASSIGNEES. 



Proof by 

depoAi- 

tioiu. 



Trading. 



prove the difFerent steps of bankruptcy. But the depositions will be 
admissible evidence, and conclusive as to the matters contained in them, in 
all cases which fall within the scope of the 92d section ; unless the defendant 
prove that the bankrupt has given notice of his intention to dispute the 
commission within the time, and has proceeded therein with due diligence. 
In such cases the depositions should be proved, either by the production of 
the documents themselves from the proper custody, t. e, of the solicitor under 
the commission (e), or proof of the handwriting of the commissioners, or by 
office-copies, according to the late Act (/*). 

The statute makes such depositions eoneHuwoe as to the matters therein 
contained \ and therefore if the evidence supplied by the deposittons taken 
as admitted be insufficient to prove any of the essentials to bankruptcy, the 
defect should, it seems, be supplied by extrinsic evidence (jg). 

The 1 & 2 W. 4, c. 66, s. 17, authorises the bankrupt to dispute the 
adjudication by petitions to the Court of Review, which may grant an 
issue for trying the validity of the adjudication ; and if the verdict or adjudi- 
cation shall not be set aside, such verdict or adjudication shall, as against 
the bankrupt, the petitioning creditor, and any assignee, and all persons 
claiming under the assignee, and all persons indebted to the bankrupt's 
estate, be conclusive evidence that the party was, or was not, a bankrupt at 
the date of such adjudication. 

Next, as to proof of the requisites of banknq)tcy (h) ; and first, of the trading. 
The trading (t) essential to bankruptcy is matter of positive statutory 
definition and of legal consideration ; but it is a question of fact, whether 
the party has done such acts as constitute him a trader in point of law ; and 
also, when the acts are of a dubious nature, whether they have been done 
with an intention to carry on trade (A). 

The statute 6 Geo. 4, c. 16, s. 2, enacts (Z), that << all bankers (m), 



notice having been given by the defendant to 
dispnte the bankmptcy, it was held (Ten- 
terden, L. C. J. and Parke, J., contrHf Bay- 
ley and Littledale, Jb.) tlu&t, by the omis- 
sion to give notice, the defendant admitted 
eversrthing necessaiy to support the com- 
mission, and that the plahitifFb were not 
bound to prove that a good petitioning cre- 
ditor's debt existed at the time of the act 
ofbankmptcy relied on. Normany, Booth, 
10B.&C. 708. 

(«) CoUinson v. HiUear, 3 Camp. 30. 
The bankrupt himself, having obtained his 
certificate and released his sureties, is a 
competent witness for this purpose. Mor- 
gan V. Pryor, 2 B. ft C. 13. 

(/) 6 O. 4, c. 16, s. 97 ; tiqfra, 132. 

(g) Lawion v. RoHruon, 1 Starkie's C. 
456. Cooper v. MaeMn, I Bing. 426. 
Marth V. Meager, 1 Starkie's C. 353. In 
Maebeath v. Coatet, 4 Bing. 34, it was 
held that the petitioning creditor's debt 
had been sufficiently established, although 
the deposition which was read was defec- 
tive on that point ; and Best, C. J. inti- 
mated that the 92d section virtually «r- 
eluded all other proof. In that case, how- 
ever, no notice had been given, and there- 
fore no proqf of the debt was necessary. 
But see the report of this case, 12 B. 
Moore, 122 ; and Bevan v. Lewis, 1 Sim. 
S76. 



(h) Where the assignees tmneeessariiif 
went into evidence of trading after notice 
to dispnte, and failing were nonsuited, tiie 
Court reflised to set aside the nonsuit. 
Johnson v. Piper, 2 N. ft M. 672. 

(i) An illegal trading will support a 
eommission. Cobb v. Symonds, 5 B. Ac A. 
516. But see MiUiken v. Brandon, 1 
C. ft P. 387. 

(A) FVt^A^v.jBtrd,! Priee,20. Bar^ 
tholomew v. Baois 1 T. R. 573. In Pat- 
man v. Vaughan, 1 T. R. 573, Boiler, J. 
stated to the jury, that if the party endea- 
voured to make a profit of trading, and was 
ready to sell to any applicant, and not as 
a matter of favour, they ought to find him 
to be a trader. 

(/) It was held that proof of trading, 
after the new Act came in force, was essen- 
tial ; and that a commission iuaed since 
the Ist September 1825, could not be sup- 
ported on a trading previously to that time. 
Exparte Batten, 1 Mont, ft M. 287. 8ur- 
tees V. Ellison, B. ft C. 750. And see 
Hewson v. Heard*, Palmer v. Moore-, 
ib. But acts of buying before the late 
statute came into operation, are evidence 
to explain the- quality of the subsequent 
acts. Worth and another v. Budd, 2 B. 
ft A. 172. 

(m) Where the bankrupt was not merely 
a shareholder, but an active manager of 



TRADIV6. — ACT OF BANKRUPTCY. 



127 



bToken(fi), and persons (o) using the trade or profession of a scrivener (p), Trading, 
receiving other men's monies or estates into their trust or custody, and persons 
insuring ships or their freight, or other matter, against perils of the sea, ware- 
housemen, wharfingers, packers, builders, carpenters, shipwrights, victuallers, 
keepers of inns, taverns, hotels (q) or coffee-houses, dyers, printers, bleachers, 
fbllers, calenderersy cattle or sheep salesmen, and all persons using the trade 
of merchandize by way of bargaining, exchange, bartering, commission, 
consignment, or otherwise, in gross or by retail ; and all persons who, either 
for themselves or as agents or factors for others (r), seek their living by 
be jing and selling, or by buying and letting for hire, or by the workmanship 
of goods or commodities (s), shall be deemed traders liable to become 
bankrupt : prorided that no farmer (*), grazier, common labourer, or work- ^^^^ po 
man for hire, receiver-general of the taxes, or member of or subscriber to liable, 
any incorporated commercial or trading companies, established by charter 
sr Act of Parliament, shall be deemed, as such, a trader liable by virtue of 
this Act(») to become bankrupt." 

The intentioii to trade may be inferred from a single act of buying and 
idling. 



the tnuiness of a jotat-stock banking com- 
paay, it was held to be a sufficient tnuiing. 
H<ai^exparte,9Beac, 405. 

(n) A shlpbroker Is a trader liable to 
become bankrupt within the 6 Geo. 4, c. 16. 
Poit T. Turner^ 6 Bing. 702. So is a 
pawnbroker. Rawliruonv. Peanon, 6 B. 
k A. 124. Qic 88 to an insurance broker. 
Bz parte Steveru, 4 Madd. 2fi6. 

(o) The wife of a felon sentenced to 
transportation, if she becomes a trader, is 
liable to the Ixuikrapt laws, although he 
in fikct remains in this country. Exparie 
•FWmJkf, 7 Bing. 762. 

(p) An attorney who is a depositary of 
money to be laid out in secnritles at his 
own discretion, and receives a compensa- 
tion distinct firam hia fees for drawing the 
eouTeyance, is a scrivener. Hutchinton 
▼• OoMcoigne^ Holf s C. 607. To make a 
nan a man^ scrivener, it mnst be an 
occupation to which be resorts in order to 
gam his living. He must receive other 
laen^B monies into his hands for custody. 
He must carry on the business of being 
trusted with oUier people's monies, to lay 
oat &r them as occasion offers. Per Oibbs, 
LC.J.; Adam Y. MdUdn, 3 Camp. 504. 
Bx parte Patenon^ 1 Rose, 400. 

(9) One who keeps a private lodging- 
houae, and buys provisions for the lodgers, 
charging a profit, is within the Act. 
Smith V. 8€<at, 9 Buig. 14. 

(r) 80 an executor carryiog on trade 
for the benefit of the testator's children. 
3£sp.C.88; 10 Yes. 110. 

(f ) Where the party, by the terms of an 
agreement of purchase, was in the situation 
of the owner in fee of the soil, from which 
he made bricks for sale ; It was held that he 
was not, within 6 Geo. 4, c. 16, s. 2, ** a per- 
Mn aeeUng his living by buying and selling, 
or aeddng his living by the workmanship 
of goods and commodities," which latter 



clause seems intended to meet the case of 
persons who make for others. Hecme v. 
Rogert, 9 B. & C. 677 ; see Exparie Bttr- 
ge$t, 2 GI. k J. 182. 

{t) A farmer who buys and sells, for 
profit, horses not used in the farminp^ busi- 
ness, to the amount of five or six in two 
years, was held to be a trader. 1 T. R. 
573 ; 2 N. R. 78. 80 if he buy more horses 
than he wants for use, with a view to a 
re-sale. Newland v. Bell, Holt's C. 221. 
Where a farmer was in the habit of pur- 
chasing more sheep than required to stock 
his farm, and selUng inunecUately the ex- 
cess without shearing, or any pasturing on 
his farm ; held to amount to a trading as 
a sheep-salesman witliin the bankrupt law. 
Newall, ex parte, 3 Deae. 339. 

Where, prior to the 6 Geo. 4, c. 16, 
the bankrupt, a farmer and grazier, had 
bought cattle, not for the purpose of liis 
farm but of sale, and after the passing of 
the Act had in some few instances bought 
and sold cattle in like manner, it was held 
that the previous acto were admissible in 
evidence to explain the nature of the subse- 
quent acts. Worth v. Budd, 2 B. & Ad. 
172. 

(u) The folbwing, it has been held, pre- 
vious to the statute 6 G. 4, are not within the 
scope of the bankrupt laws : — ^An attorney 
who receives and places out the monies of 
his clients in the usual course of business, 
and charges in respect of the deeds or secu- 
rities, and not as commission, on the monies 
in his hands (Hurd v. Brydget^ Holt's C. 
654) ; a schoolmaster who buys books and 
shoes, and retails them to his popUs ( Va- 
lentine V. Vaughan, Peake» 76) ; one who 
erects public baths on land grranted to him 
for the purpose ( WUlioTiti v. Stevent, 2 
Camp. 300) ; who builds a theatre to be 
held in shares, for which he is to be paid 
according to measure and value, he being 



128 



BANKRUPTCY : PROOFS IN ACTIONS BT ASSIGNBBS. 



Proof of "^^^ purchase of a single lot of timber^ if made with intent to trade, will 

trading. make a man a trader (y). 

After proof that he has once traded, it is not necessary to proye continued 
acts of trading up to the yery time of the bankruptcy ; it is sufficient to prore 
acts from which it can be inferred that he intended to continue the trade (z,) 
Thus the soliciting orders for business is evidence of the party's intention 
to continue the trade, although he has not actually transacted business for 
some time previous to the bankruptcy (a). 

Where a fisherman has occasionally bought and sold fish, it is to be pre- 
sumed that whilst he remains a fisherman he carries on business in the 
same way {b). 



a shareholder (Ibid.) ; who bnys timber 
which he uses for building of houses which 
he sells (Clark t. WOwn, 6 Esp. C. 873) ; 
one who keeping hounds bays dead hones, 
and sells the skin and bones (Summenett 
Y. JameB, 3 B. & B. 8) ; or baying more of 
an article ^an he wants, sells the sorplas 
(NewkmdY.BeU, Holt's C. 282); a llTeiy- 
stable keeper who bays proTender, and sells 
it to his costomers and others (Cannon v. 
X>enew, 10 Bing. 292) ; a cowkeeper who 
sells cows nnflt for use (Carter v. Drew. 
1 Swanst. 64); a farmer who bays and 
sells articles incidental to the occupation 
of his &rm, as where he buys pigs, feeds 
than on hisstabbles^and resells them from 
time to time (Patten v. Brown, 7 Taont, 
409.) (Bat where a fanner bought horses, 
whidi were not fit for &rming, and sold 
them again, avowing his intention to be- 
come a horsedealer, the &ct8 were held to 
be evidence of trading. Wright v. Sirdf 
I Price. 20.) So althons^ where brick- 
making is carried on as a mode of eigoying 
the pr^tsof a real estate, it will not make 
tiie party liable to the bankrupt law, 
whetiier he be a termor, or entitled in fee ; 
it is otherwise where tlie bushiess is car- 
ried on Independently and substantively as 
a trade. (Sutton v. Weely, 7 Bast, 442. 
ExparU Guttimore,2 Rose, 424 ; £den,4.) 
The owner of land who uses the day for 
making bricks, and buys chalk for the 
more convenient burning of the bricks, is 
not a trader. (Paul v. DowUng, M. & M. 
263. Sx parte Bwrgeu, 2 Q. & J. 183. 
Heane v. Roffers, 9 B. & C. 577.) An 
executor disposing of his testator's stock 
is not a trader, although he purchase other 
articles to make it marketable; secta, if 
he increase the stock, and continue to selL 
(JBx parte Nutty 1 Atk. 102. Bx parte 
Oarkmd, 10 Ves. 120.) Where a tes- 
tator directs the trade to be carried on 
after his death with part of bis property, 
ttmt part only will be liable in case of 
bankraptcy. (Thontpton v. Andrewif I 
Myhie & K. 116.) Baying and selling land 
does not constitute a trading. (Port v. 
Turton, 2 Wils. 169.) The following per- 
sons also were liable :— A clerk in a ca»» 
tomrhouse, employed by merchants to re- 
ceive money on debentures, with which 
he discounts bills on his own accoant 



(2 Esp. C. 655) ; a person who occasionally 
buys and sells hay, com and horses, with 
a view to profit, but without making them 
the means of seeking his living (Stewart 
V. Ball, 2 N. R. 78. BoUan v. Sowerby, 
11 East, 274); a colonel of a regiment, 
who occasionally sells horses at Tsttersall's 
(Ex parte Blaekm4jre,QYeiA.b)*, reoeiTers 
of taxes (5 Geo. 2, c. 30, s. 40) ; graziers 
(ibid.); drovers (ibid.); farmers (ibid.); 
contractors for victusilling the navy (1 
Vent 270); innkeepers (2 Burr. dOM); 
one who draws bills for the purpose of 
improving his estate, and borrows accom- 
modation bills, in lieu of which he gives 
his own (Hemkey v. Jonet, Cowp. 745.) 
(SeeuM, if thero be a continuation with a 
view to gain profit by the exchange, ibid. 
Riehardeon v. Bradthaw, 1 Atk. 128); 
a builder who buys timber for building 
houses, and sells the houses (5 Esp. C. 
147. iSwitf, Dyer v.lTtMiMm, cor. Abbott, 
L. C. J. sittfaigs after T. T. 1825); holders 
of stock in different trading companies by 
various statutes (3 Esp. C. 88 ; 10 Ves. 
110. 

(y) Holroyd v. Owywne, 2 Taunt. 17GL 
See also Newland v. Bell, Holt* s C. 221 ; 
Stewart v. BaU, 2 N. R. 79. VHiere it 
appeared that a party had ordered goods 
for the .purpose, as he stated, of sending 
them abroad, saying, that he would give 
other goods in exchange for them ; Abbott, 
C. J., on the objection being taken that 
there was no evidence of selling, said, ** I 
cannot say that if a man buys, and repre- 
sents himself as a dealer, and offers goods 
in exchange, he does not buy to sell again ; 
at least I must leave it to the jury, I cannot 
nonsuit upon it." The quantum of trading 
is fanmaterial. Newland v. BeU, Holt's 
C. 221. Qale v. Haifhdght, 3 Staikie's 
C. 56. Patmore v. Vaughan, 1 T. R. 
572. 

(z) 5 Esp. C. 235. 

(a) Wharam v. Boutledge, 5 Esp. C. 
235. Whether a trader who has ceased to 
buy, but is selling off his stock, is liable to 
a commiseion depends upon the existence 
of intention to exercise or resume the 
trading, and this is a question for the jury. 
Bx parte Patenon, 1 Rose, 402. 

(b) Heanny v. Birch, 3 Camp. 233 
Paul V. BowHni, V- & M. 268. 



TRADIVO. — ACT OP BANKRUPTCY. 



129 



And where business had been carried on by the party in partnership with 
another, which partnership had been dissolved some years before, and no 
act of trading had been done for two or three years before the time when 
the petitioning creditor's debt accrued, but the concerns had not been 
ultimately wound up, and part of the stock still remained in the ware* 
honse of the parties undisposed of, the jury found, under the direction of 
the Court, that the trading continued (c). 

It is a question for the jury whether there has been an entire cessation 
of trading, or merely an interruption, with intent to resume it, should an 
opportunity offer (d). An admission of a party that he is in partnership 
with a trader, is evidence of his being a trader, without proof of actual 
trading (e). Although the trader be described as a money-scrivenef , and the 
general words dealer and chapman, be omitted, it is sufficient, temble^ to 
prove any species of trading {/), 

Any species of trading is admissible in evidence to satisfy the general 
ETerment that the bankrupt got his living by buying and selling {g)» 

Thhrdfy. The several acts which constitute bankruptcy are matter of Act of 
positive statutory definition ; and whether a particular act, when proved, l*nkniptcy. 
falls within the definition, is a question of law ; but whether the act itself 
has been committed, and particularly whether it has been done with that 
tnieii^ioii which in the particular instance is essential to bankruptcy, is usually 
pore matter of fact for the consideration of the jury. 

By the atat. several of the acts of bankrurtcy there specified (h) must be 



(e) The Exeeuton qf BoMotue v. 
Tarletoi^ wr, Ld. EUenborough, Quildhall, 
on an iasae from tlie Lord ChioireUor to try 
the fact 

{d) Per lid. SIdon, Exparte Patter ton^ 
1 Boee, 40S.' Heanny v. Bireky 1 Rose, 

a56u 

(e) Parker v. Barker^ 1 B. & B. 9. But 
iQch declaratioiis are not generally evi- 
dence in actions by aasignees against third 
persona. Br&mUy v. King, R. & H. 228. 
Bedaiations, however, made at the time 
of pnrehashig goods are evidence to show 
the intention <n the trader as to the mode 
io which he intended to dispose of them. 
Oak V. Haif knight, 3 Starkie'a C. 56. 

(/) Smith V. JSandilandt, Qloster Somm. 
Aas. 1819, 1 Oow; and per Wood, B., 
Winch. Sp. Ass. 1820, Mann. Ind. 371. 
Hale T. SmaUy 2 B. &; B. 25. 

(^) Hak V. SmaU, 2 B. & B. 26. The 
Itt^cmpta being described as bankers, 
being traders according to the statute, it 
^nia held that the word hankers might be 
considered merely as a designatio penona- 
^VR. BemoMeom v. Fardnvther, 10 B. & 
C.548. 

(h) The Stat. 6 G. 4, c 10, s. 3, enacts, 
that if any aach trader shall depart this 
i^ealffl, or being ont of this realm shall re- 
laais abroad, or depart from his dwelling- 
iwnse, (» otherwise absent himself, or beglUi 
to keep hia honse, or suffer himself to be 
vreated for any debt not dne, or yield him- 
self to prison, or suffer himself to be out- 
lawed, or proeore himself to hearrested, or 

VOL. II. 



his goods, money or chattels to be attached, 
sequestered or taken In execution, or make 
or canae to be made, either within this 
realm or elsewhere, any fnadulent grant 
or conveyance of any of his lands, tene- 
ments, goods or chattels, or make or cause 
to be made any fraudulent surrender of any 
of his copyhold lands or tenements, or make 
or cause to be made any fraudulent gift, 
delivery, or transfer of any of his goods or 
chattels, every such trader doing, suffer- 
ing, procuring, executing, permitting, 
making, or causing to be made any of the 
acts, deeds, or matters aforesaid, tnth in- 
tent to defeat or dehiy his creditors, ahall 
be deemed to have thereby committed an 
act of bankruptcy. 

The 4th sect, enacts, that where any such 
trader ahall execute any conveyance or aa- 
aignment by deed to a truatee or trustees, 
of all hia eatate and effecta for the benefit 
of all the credltoTB of auch trader, the exe- 
cution of BQch deed ahall not be deemed an 
act of bankruptcy, unleaa a commiaaion 
issue against such toider within six calen- 
dar montha from the execution thereof by 
auch trader : provided that such deed shaU 
be executed by every auch trustee within 
fifteen days liter the execution thereof by 
the said trader, and that the execution by 
such trader and by every such trustee be 
attested by an attorney or solicitor, and 
that notice be given within two months 
after the execution thereof by such trader, 
in> case such trader reside in London, or 
within 40 miles thereof, in the London 
K 



Art of 
bank- 
ruptcy. 



lao 



BANKRUPTCY '. PROOFS IV ACTIONS BY ASSIGNEES. 



done with intent to defeat or delay creditors. Under these words it is suf- 
ficient to prove an intention to defeat or delay creditors, without proof of 



Cteiette, and also in two London daily 
newspapers ; and in case such trader does 
not reside within 40 miles of London, then 
in the London Gazette, and also in one 
London daily newspaper, and one proyin* 
eial newspaper published near to such 
trader's residence ; and such notice shall 
contain the date and execution of such 
deed, and the name and place of abode 
respectively of every such trustee, and of 
such attorney or solicitor. 

Previous to this statute it was held that 
an assignment for the benefit of creditors 
was not an act of bankruptcy, if all {Eck' 
hardt v. WiUon, 8 T. R. 140) or the gene- 
rality assented. InglU v. drant, 5 T. R. 
530. 

The 5th sect, enacts, that if any such 
trader, having been arrested or committed 
to prison for debt, or on any attachment for 
nonpayment of money, shall, upon such or 
any other arrest or commitment for debt or 
nonpayment of money, or upon any deten* 
tion for debt, lie in prison for 21 days, or 
having been arrestoi or committed to 
prison for any other cause, shall lie in pri- 
son for 21 days after any detainer for debt 
lodged against him and not (discharged, 
every snch trader shall be thereby deemed 
to liave committed an act of banlunptcy ; 
or if any such trader, having been arrested, 
committed or detained for debt, shall 
escape out of prison or custody, every such 
trader shall be deemed to have thereby 
committed an act of bankruptcy from the 
time of such arrest, commitment, or deten- 
tion: provided, that if any such trader 
shall be in prison at the time of the com- 
mencement of this Act, such trader sliall 
not be deemed to have committed an act 
of bankruptcy liy lying in prison, until he 
shall have lain in prison for the period of 
two months. 

By the 6th sect, a declaration of insol* 
vcncy filed by the trader, and afterwards 
advertised in the London Gazette (accord- 
ing to the provisions of the statute), shall 
be an act of bankruptcy from the time of 
the advertisement ; but no commission shall 
issue unless it be sued out within two ca- 
lendar months from the time of insertion 
of such advertisement, and unless the ad- 
vertisement be inserted within eight days 
after the filing of the declaration with the 
secretary of bankrupts; and no docket 
shall be struck on such act of bankruptcy 
before the expiration of four days next 
after the insertion of snch advertisement, 
where the commission is to be executed in 
London, or before the expiration of eight 
days where it is to be executed in the 
country ; and the Gazette containing such 
declaration shall be evidence of such decla- 
ration having been filed. 



The 7th sect enacts, that an adjudica- 
tion founded on such an act of bankruptcj 
shall be valid, although concerted between 
the trader and any other person. 

By the 8th sect, if any snch trader shall, 
after a docket struck against him, pay to 
the person or persons who struck the same, 
or any of them, money, or give or deliver 
to any such person any satisfoction or seea- 
rity for his debt, or any part thereof, where- 
by such person may receive more in the 
pound in respect of his debts than tlie other 
creditors, such payment, gift, delivery, 
satisfaction or security shall be an act qf 
bankruptq/ ; and if any commission shall 
have issued upon the docket so struck as 
aforesaid, the Lord Chancellor may either 
declare such commission to be valid, and 
direct the same to be proceeded in, or may 
order it to be superseded, and a new com- 
mission may issue, and such commission 
may be supported either by proof of such 
last-mentioned or of any other act of bank- 
ruptcy; and every person so receiving 
such money, gift, delivery, satisfaction, or 
security as aforesaid, shall forfeit Iiis whole 
debt 

By sect 10, if a trader, having privilege 
of parliament, shall not, within one calen- 
dar month after personal service of a copy 
of a summons sued out by his creditor, pay, 
secure or compound for such debt to the 
satisfaction of such creditor, or enter into 
a bond in such sum, and with two sufficient 
sureties, as any Judge of the court out of 
which the summons issued shall approve 
of, to pay such sum as shall be recovered, 
together with costs, and within one calen- 
dar month next after personal service of 
such summons cause an appearance to be 
entered to such action in the proper coart, 
every such trader shaU be deemed a bank- 
rupt from the time of the service of such 
summons. 

By sect 11, if such trader, having pri- 
lege, &c. neglect, after personal service 
of the order, to pay money ordered to be 
paid by any Court of Equity, on a peremp- 
tory day fixed by that Court for such pay- 
ment, he shall be deemed to have com- 
mitted an act of bankruptcy from that day. 
An act of bankruptcy was committed on 
the 6th of March, prior to 5 Geo. 4, c. 08, 
coming into force, by which all former 
Bankrupt Acts were repealed, but which 
was itself repealed by the 6 Geo. 4, c 10, 
after which the commission issued ; held, 
that it was to be considered as if the 
5 Geo. 4 hud never existed, and that the 
commission was well supported by that act 
of bankruptcy. Philiipt v. Hopwood, 
10 B. &, C. 39. 



ACT OP BANKRUPTCY. 



131 



any ftctoal delay of a creditor (t). And it Is Dot sufficient to prove delay, 
if the intention be wanting (A). 

It seems to have been held nnder the stat. 21 J. 1, c. 15, s. 2, that the Intention, 
departing the realm would constitute an act of bankruptcy, provided it was 
proved that a creditor was in consequence delayed, independently of any 
proof of an intention on the part of the bankrupt to do so ; that is, the latter 
branch of the clause was considered to be entirely independent of the intent 
mentioned in the former part: the effect was to render the mere delaying 
of the creditor, provided it was the consequence of one of the acts specified, 
an act of bankruptcy. As in Woodier's CatCy who departed the realm be- 
cause he had killed his wife (/); and in that of Baikes v. Pereau(m), where 
the primary reason for the bankrupt's going abroad was, that a young 
woman had refused to live with him as his mistress unless he took her 
abroad. In both these cases creditors were delayed, and for that reason 
the question of intention was considered to be immaterial. 

In the subsequent case of Robertson y. LiddeU(n), this stat. (21 J. 1) was 
much discussed, and it was held that the words were to be read, " to the 
mtaU his creditors shaUy or that thereby they may be defeated ;'' making the 
bdent to govern the whole clause. Still those cases might probably have 
been decided as they were, consistently with the latter construction ; since, 
although the primary object of the bankrupt in going abroad might not be 
to delay his creditors, yet if the delaying his creditors was the immediate 
and necessary consequence of his act, it might be considered as evidence of 
such an intention (o). And it seems to be probable that under the present 
statute (6 Geo. 4, c, 16), which makes the intention to delay essential to the 
act of bankruptcy, it would beheld that where the delaying of creditors was 
the natural, immediate and necessary consequence of the trader's act, the 
Tery act itself would supply strong evidence of intention ; for in law as 
well as morals, every one must be considered to contemplate the natural 
and inunediate consequence of his act(/?). 

In order to prove the intention of the bankrupt to delay a creditor, decla- Declara- 
rations made by him, which were cotemporary with the act itself, are ad- ^^°'' 
missible. Accordingly, what the party said on requesting his servant or 
clerk to deny him to creditors (9), or when he departed from his dwelling- 
house, or even upon his return home again, is evidence to show with what 
intention he secluded or withdrew himself from his creditors (r). 



(i) It was 80 held nnder the now re- 
pealed stat 1 J. 1, c. 15, 8. 0, where the 
vords were ''to the intent or whereby 
creditors may be defeated or delayed.** 
Sobert$(m y. lAddeU, 9 East, 487, in 
which the case of Fowler v. Padgett, 7 
T. B. 509, was oyermled, where it had 
been held that the word or in the statute 
nieant and. See Hammond v. Hicks, 6 
Esp. 130; 1 Taunt. 273. 370; 3 Smith, 
^7. WiUon V. Norman, 1 Esp. C. 334 ; 
Hohvyd v. Gioynn, 2 Taunt. 176 ; Mamt- 
bottmn T. LewiM, I Camp. 279 ; Holroyd 
y-WkU^teadj 3 Camp. 530; i^fra, 132*3. 

(i) Windham v. Paterton, 1 Starkie's 
C. 146. Warner v. Barber, Holt's C. 175. 

{J) B. W. P. 39. 

(m) Co. B. L. 5th edit 73 ; and see 
lemony, HasAey, Co.B. L., where Buller, 
J. approvad of the decisioo in Woodier^t 



Case, and said that it had always been 
considered and acted npon as good law. 
(n) 9 East, 487. Holroyd v. Owynn, 

2 Taunt 176. 

(o) See the observationB of Lawrence, J. 
in Fowler v. Padgett, 7 T. R. 516. 

(p) See tit. Intention — Malice; 
and see the observations of Abbott, L. C. J. 
in Pulling v Tucker, 4 B. & A. 385. 
Pamsbottom v. Lewis, 1 Camp. 280. 
Where the bankrupt, on going abroad, left 
with his clerk a power to act, but without 
making any provision for bills becoming 
due, and the inevitable consequences must 
be to delay his creditors, it was held to be 
an act of bankruptcy. Kilner, ex parte, 

3 Mont k. KjT, 722. 

(q) Jamieson ▼. Earner, 1 Esp. C. 381. 
(r) Bateman v. Bailey, 6 T. R. 512 ; 
B. N. P. 41. Ambrose v. Clendon, Ca. 
k2 



132 



bankruptcy: proofs in actions by assionbbs. 



iMtntto 

delay ere- 
ditora. 



Departing 
the realm. 
Intention. 



The bankrupt was arrested and taken twelve miles from home on the 5ih, 
was discharged at one o'clock in the afternoon of the 6th, and returned 
home at ten o'clock on the night of the 7th ; it was held, that what he sdd 
to a witness (who inquired where he had been), as to the reason of his ab- 
sence, was admissible, in explanation of his act(<). So what the bankrupt 
said on removing his books is evidence (t). Where, in trespass for taking 
goods, the question was as to the bankruptcy of the plaintiff, it was held 
that letters found in his possession after the bankruptcy, with post-marks 
of a date previous thereto, must be taken to show that he received them 
before, and were evidence to show, in explanation of his conduct, that he 
had received intimation of the facts mentioned in the letters having taken 
place, although they were not evidence that the facts stated really did so 
happen («). But declarations or admissions by the bankrupt, which are 
subsequent to the act are not admissible (x). 

Where the proceedings were read in evidence (under the stat. 49 G. 3, 
c. 121), a deposition stated that the bankrupt had absented himself, and that 
he had admitted that he had absented himself for the purpose of avoiding 
his creditors, but did not specify the time of such admission, and it was 
held that there was not even primA facie evidence to prove the act of bank- 
ruptcy (y). 

Where the act to be proved, is the departing the realm with intent to 
delay creditors, the intention of the party is a question of fact for the de- 
termination of the jury; to be collected either from the contemporary 
declarations of the trader, or to be presumed from circumstances, consider- 
ing the mode and reason of the departure, the state of his affairs at the time, 
and other circumstances likely to operate as motives. The case is subject 
to the general presumption of law, that a man contemplates that result 
which is the natural and obvious consequence of his act, although he may 
have had another primary and immediate object in view(z). A letter 
written by the trader during his absence is evidence to explain its nature (a); 
for the departing the realm is a continuing act (b). 



T. H. 267 ; 4 Esp. C. 233. WiUon v. 
Norman^ 1 Esp. C. 334. Robertson v. 
Liddell, 9 East, 487. Holroyd v. Owynne, 
2 Taunt. 176. Declarations made by the 
bankrupt at the time of bis return, that 
he bad quitted to avoid the service of a 
writ against him, are admissible and suffi- 
cient evidence of an act of bankmptcy, 
without farther proof of the existence of 
the writ or of the debt, or of there being 
any creditor. Newman v. Stretchy 1 M. 
& H. 838. A creditor called at the 
hoose of the bankrupt by appointment 
for payment of his debt, and saw the 
bankrupt, who shortly after left the room, 
and did not retnm ; the wife afterwards 
informed the creditor he was gone ont ; it 
is for the jury to say, whether he left his 
house to avoid or delay a creditor, and 
the wife's answer is admissible as port of 
the ret gettm, Charrington v. Broum, 11 
Moore, 341. The admissibility of such 
declarations cannot be decided by any 
positive mle as to time, but must depend 
OB the nature and strength of their con- 



nexion with the disputed act. Where tlie 
question was, whether giving a security 
by the trader to G. on the 25th of October, 
amounted to an act of tiankruptcy, it was 
held that a conversation whi<^ Uie trader 
had with JL., to whom he had on the 25th 
of October promised to give a security on 
the ibllowing day, and in which he faisdy 
professed a total ignorance of tlie security, 
was admissible evidence to show the real 
nature of the transaction. Bidleyv. Gyde, 
9 Bhig. 349. See also Rawton v. Haighy 
2 Bing. 104. 

(«) Baieman v. Bailey, 5 T. R. 512. 

(t) Ambrose v. CUndon, Ca. T. H. 267. 

(tt) Cotton V. James, 1 M. & M. 276, 
and 3 C. & P. 505. 

(x) Robson V. Kemp, 4 Esp. C. 238. 

(y) Marsh v. Meager, 1 Starkie's C. 353. 

(z) Vide supra, 131. 

(a) Windhani v. Patenon, 1 Starkie's 
C.146. 

(6) Raweon v. Haigh, 2 Bing. 99. Lees 
V. Morton, 2 Mo. & R. 211. MayUn v. 
JStfloe, 2 Str. 809. 



ACT OF BANKRUPTCY. 



133 



If the delay of creditors be the necessary consequence of the departure, 
the intention to delay may be inferred, although the party had another and 
more immediato object in departing; as on account of domestic dissen- 
sions (c), to ayoid a prosecution for felony (d), or in order to live with a 
nustress (e) ; and ho in other cases where the purpose of departure is aUent 
firom that of trade, for the party must be supposed to contemplate and intend 
that which is the immediate and necessary consequence of his act (/*). 

But it is not enough to show that the party left England and proceeded 
to Ireland, where he also carried on trade, without leaving funds behind him 
for the payment of his debts, for non constat that he did not go for the very 
purpose of proyiding funds ; and this case differs essentially from that of 
Holroyd V. Whitehead, since there the intention of the departure was aUene 
from that of trade (g). 

If a subject, domiciled in Ireland, leave his family there and come to 
England to settle his affairs, and return to Ireland abruptly to avoid an 
arrest, he commits an act of bankruptcy (A). 

To prove an act of bankruptcy by a departure from the dwelling-house, Departurs 
the act of departing must be proved; and secondly, the intent to delay ^"^^ ^^^ 
creditors, &c.(i); and on the other hand, any facts are admissible which |i^,^°^" 
tend to disprove the intention, and to show that the trader departed without 
any intention to delay his creditors (A). The intention of the trader in a 
doubtful case, is one of fact for the jury (/). 



(e) Hoibroyd v. Whitehead^ 3 Camp. 
530. -^ r 

(d) Woodier'i Ca»e, B. N. P. 39. 

(e) Raikes ▼. Pereau, Co. B. L. 73. 

(/) See Mr. J. Lawrence's obsenratioDS 
in Fowler v. Padgett, 7 T. K. 616. In 
the case of Holroyd v. Whitehead, (3 
CuDp. 590, sahsequently approved of by 
L)rd EUenborough, Windham v. Pater- 
«m, 1 Starkie^s C. 146,) the bankrupt left 
blfl dweUing<4ioiise on account of domestic 
diseensioos with his wife, and left a letter 
itating that there woald be 20 <. in the 
pouid for creditors, bat that, be it less or 
more, he had done with trade, desiring 
that no one should be allowed to take 
gooda oat of the warehonse in preference, 
and giving no directions for the continu- 
aace of his business ; daring his absence 
a creditor called for money, who went 
awBy onsatisfled. And it was left to the 
Jary» whether, under the circumstances, 
tie party had not left his house with an 
intention to delay his creditors, and whe- 
ther a creditor had not been delayed ; and 
the jnry found both these facts. See also 
RamOiottom v. Lewii, 1 Camp. 279. 

(y) WvuOutm r, Patenon, 1 Starkie's 
C. 144. See Warner v. Barber, Holt's C. 
176. 

{h) WiUiami v. Nunn, 1 Camp. 152, 
Mr. Chambre, J. 1 Taunt. 270 ; where it 
is auted that the &mily resided in Eng- 
laod, and the Court adverted to that cir- 
camstance. 

(i) See the cases above cited, p. 1 32-3; 
aUo WUton v. Norman, 1 Esp. C. 334 ; 
Robertmn v. Liddell, 9 East, 487. As 



has already been seen, proof of actual 
delay is unnecessary, althoogh the con- 
trary was once held. Barnard v. Vaughan, 
8 T. R. 149. Where the trader departed 
under the false notion that the officer 
who had called had a writ for him, 
it was held to be an act of bankruptcy. 
See also JEx parte, Ban\ford, 15 Ves. 449. 
AUJbridge v. Ireland, 1 Taunt. 273 ; Hoi- 
royd V. Whitehead, 3 Camp 530; Wil^ 
liams V. Nunn, 1 Taunt. 273 ; Hanunond 
V. Hieket, 5 Esp. C. 139. Under the 
words of the stat. 21 J. 1, <* Whereby the 
creditors may be defeated or delayeid for 
the recovery of their just and true debts/' 
it was held, that an absconding to avoid 
an attachment for the non-delivery of 
goods pursuant to an award, being a mere 
duty and not a debt, was not within the 
statate. Lingtoood v. Bade, 1 Atk. 196. 

{k) See Ld. Mansfield's observations In 
Worseley v. Demattos, 1 Burr. 467. A,, 
a publican, leaves his dwelliug-house at 
seven in the morning, intending to com- 
plete a sale of his stock in the pablic- 
house, and having received the money, to 
abscond to Ireland ; he completes the con- 
tract, and receives the purchase-money at 
another house in Manchester, and imme- 
diately proceeds to Ireland without re- 
turning to his house. Lord Abinger held, 
that if the purchase and payment of the 
money were bon& fide, it was no act of 
bankruptcy, from the original departure 
to affect the subsequent sale the same 
morning. Bardsley v. Harrison, Liver^ 
pool Summer Assizes, 1835. 

(I) Duffle V. JDesanges, 8 Taunt. 671 ; 
Aldridge v. Ireland, cited, 1 Taunt. 273. 
k3 



134 



BANKRUPTCY : PROOFS IN ACTIONS BY ASSIONESd. 



Abieiitiiig 
himselfl 



What the trader said on quitting his dwelling house is admissible evidence 
to show his intent (m). 

Such declaration to be admissible must be made at the time of the act, or 
so near to it as to form part of the same transaction, either whilst the trader 
is absenting himself or immediately after his return' (n). 

A trader who has no settled house or counting-house, but takes up his 
residence at a public-house in the place to which his business carries him, 
may commit an act of bankruptcy by a departure from that house (o). 

A trader on absenting himself stated that writs were out against him ; it 
was held to be unnecessary to prove that fact (/i), for the intention is the 
same, whether the assertion was true or false. 

Otherwise absent himself. — It is sufficient to prove an absenting of himself by 
the trader from his usual place of business ; as from a counting-house, where 
he has a dwelling-house in the country, with intent to delay his creditors (q) ; 
and in general, any absence from his dwelling-house, for however short a 
period, is sufficient. As where a trader, on being called upon by several 
creditors for money, leaxes his house under pretence of getting money for 
them, and spends the evening at a billiard-table, or at a tavern (r). So where 
a trader apprehending an arrest concealed himself in a back room in another 
person's house, until a sheriff's officer, who he was informed was going towards 
his house, had left the street («), and then returned home. So where being 
arrested he fled from the officer to the house of another person (t). 



(m) See the general prineiple, Yol. I. 
p. 351, AnUfrose v. Clendon, 0. T. H. 267. 

(n) A depositioii, stating an admiBsion 
by the trader of an absenting to avoid 
creditors, but not stating the time of such 
admission, is not receivable. Marsh v. 
Meager, 1 Starkie's C. 353. The autho- 
rities somewhat differ as to the admitting 
of declarations made after a return. See 
the cases of Bateman v. Bayley, 5 T. R. 
512, where such evidence was held to be 
admissible ; and Neumum v. Stretch, M. 
Sl M. 338, where such evidence was ad- 
mitted by Parke, B. ; but the correct rule 
seems to have been laid down by that 
learned Judge in Zees v. Morton, 1 Mo. & 
R. 211, that such a dnclaration is inad- 
missible, unless it be made by the trader 
whilst he is absenting himself, or immedi- 
ately after his return. See further, 2 
Evans's Pothier, 285 ; Mayiin v. Eyloe, 
2 Str. 800; Ratoson y.Haigh, 2 BIng. 99 ; 
Ridley Y, Oyde, 9 Bing. 349; Exparte, 
Palmer, 1 D. & C. 373; SmaUeombe t. 
Bruges, M'Clehmd,45. In the Case of 
Smith v. Cramer, 1 Bing. N. C. 585, the 
trader having absented himself on the 
16th of February, two letters written by 
him on the 16th of January, in v^hich he 
asked for time upon two bills of exchange, 
were admitted to show the motives of 
his absence. Here, however, the letters 
showed that the trader was in difficulties 
not long before his departure, and they 
were admissible to prove that &ct, as acts 
done in the management of his affairs, and 
therefore tending to show the state of 
those affairs. 



(o) Holroydy,Gtoynne,^tsxmt\%* 
See Com. Dig. Bankrupt [C] 1. 

(jp) Wilson V. Norman, 1 Esp. C. 334. 
See Robertson v. Liddell, 9 East, 487; 
Holroyd v. Gwynne, 2 Taunt 176; H. & 
M.3d8. 

(q) Judine v. Da Cossen, 1 N. R. 234, 
where the trader quitted his counting- 
house in town, taking his books with him, 
without the animus revertendi, and went 
to his dwelling-house in the country, 
where he slept a few nights, and then 
finally quitted it If one who has no con- 
stant dwelling absent himself firom his 
usual place of abode, with intent, &c. it is 
an act of bankruptcy. Com. Dig. Bank- 
rupt, [C] 1. The bankrupt, on bdng 
applied to for a debt, said, he could not 
pay then, but promised to meet the cre- 
ditor at an inn in the evening, but failed 
to do so ; it is for the jury to say, whe- 
ther he broke such appointment with any 
other than the intent to delay the creditor 
with whom he made it Widger v. Broum- 
ing, 9 D. & R. 306. The absenting, to 
constitute an act of bankruptcy, must be 
from a pUce of business where, from the 
ordinary course of his life and business, be 
would be expected to be present Bemah 
ami T. Fairbrother, 10 B. & C. 549. 

(r) Bigg v. Spooner, 2 Esp. C. 651. 

(i) Vincent v. Prater, 4 Taunt 603. 
Chenotceth Y. Hay, I M. & S. 676. See 
also Bayly v. Schofield, 1 M. & S. 338. 

(0 Bayly v. Schofield, 1 M. k. S. 338; 
and see Wilson v. Norman, 1 Esp. C. 334. 
So where one of two partners lived in Lon- 
don, the other in Manchester, and the 



ACT OF BANKRUPTCY. 



135 



So tbe riding out of town in order to avoid a writ, and get the term of 
the plaintiff (tt), is an act of bankruptcy. So where a debtor in the habit of 
frequenting the Royal Exchange appointed a creditor to meet him there, and 
directed a friend^ in case the creditor inquired for him, to say that he was 
not there (x). 

Where one of three bankers who resided at the place where the business 
was carried on, the other two living at a distance, shut up the house and 
stopped payment, it was held that this was not evidence of a joint bankruptcy 
by the three (y). 

It is not essential to prove that any creditor was actually delayed (z). 

The question of intention in this, as in other cases, is usually for the jury ; Intentioo. 
aod if evidence be offered in explanation of the absence, and in order to rebut 
the presumption to delay creditors, as that he did it to avoid irritation and 
harsh language, the case is for their consideration (a). If a person who has 
no settled dwelling absent himself from his usual abode with intent to delay 
creditors, it is an act of bankruptcy (b). 

Beginning to keep funue. — ^This act of bankruptcy must be evidenced by Beginning 
wme act by which the party secludeshimself (c) from the solicitation of his J® ^^ 
creditors, with the intention of doing so. The most usual proof consists of 
an actual denial to a creditor, by a clerk or servant authorized to do so by 



London partner having left his house with 
intent to delay his ercditors, and having 
been a few days at Manchester, both of 
them left their coantry house there to 
&Toid an arrest, carrying with them their 
boolLS of accounts. Spencer v. BiUingy 3 
Camp. 312. Where a trader abstained 
from going to a place to make inquiry as 
to aa ezecutlon against him, to which he 
would have gone but for fear of an arrest, 
it was held to be an absenting himself. 
Robun V. Jloiliy Bing. 648. 

(u) Maylin v. Eyloe, Stra. 800. Qu. 
whether if a trader leave the realm with- 
ODtany intention to delay his creditors, 
hot whilst absent he deliberately forms 
that intention, and annonnces it, he com- 
mits an act of bankmptcy. See Wirtd' 
hma T. Pateracnj 1 Starkie's C. 144 ; and 
1 Christian's B. L. 178. 

(x) Gimmingham v. Laing, 6 Tannt 
532. Gibbs, C. J., hi that case intimated 
that the words ** otherwise absenting him- 
self," meant from creditors, and not from 
any particular place. And see Robson v. 
BoUt, 9 Bing. 648; and Rohinion v. 
CarrinQtoiif 1 Mont. & A. 12, where tbe 
Master of the Bolls held that a mere 
Mare to keep an appointment with a 
creditor was a sufficient absenting. But 
in BemoMConi v. Fairbrothery 10 B. & C. 
556, the Court held that an absenting 
(according to the decisions) was to be con- 
fined to an absenting himself from his own 
particular place of business at which a 
man might be expected to be ; or from one 
or more particular creditors at some other 
place ; and per Parke, B., in Lee$ v. Mar^ 
ton, I M. & R. 212 ; no case has gone 
the length of deciding, that where the ap- 
pointment is to meet the creditor at his 



(the creditor's) place of residence, and the 
debtor breaks that appointment, snch con- 
duet amounts to an act of bankruptcy ; 
and -where a trader, who, on being ar- 
rested, had obtained his liberty on a pro- 
mise to attend and execnte a bail bond, 
but did not attend, it vras held to be no 
act of bankmptcy. Schooling v. Lee, 3 
Starkie's C. 148; and in the case of 
T\ieher v. Jones, 2 Bing. 2, the Coart of 
Common Pleas held that the fkUure to 
keep an appointment with a creditor was 
not an absenting within the statute. 
Where the trader, upon the advice of tlie 
attorney of the petitioning creditor, went 
into his office in order to avoid a public 
arrest at the suit of the petitioning cre- 
ditor, it was held to be no act of bank- 
ruptcy. Mills V. Bltony 3 Price, 142. 

(y) Mills V. Bennett, 2 M. & S. 566. 

(2) Hammond v. Hiehes, 6 Esp. C. 139. 
Bobertsonr. Liddellf 9 Bast, 487. Supra, 
ISO. 

(a) Vincent v. Prater, 4 Taunt. 603. 
A trader left at his bouse a message for 
a creditor, who had in his absence called 
for a debt, tliat he could spare no money 
and would not pay him that day, and 
would go out of the way and not return 
home till dinner-time; and it was held 
that it was for the jury to consider whe- 
ther he absented himself In order to delay 
the creditor, and that they were warranted 
in finding that he did not. 

(b) Com. Dig. BANKauPT, [C] 1. 

(c) It is sufficiant if the trader secrete 
himself in the house of a friend where he 
is lodging, and where persons are in the 
habit of calling upon him. Curteis v. 
WUlie, 1 R. & M. d8. 

k4 



138 



BANKRUPTCY : PROOFS IK ACTIONS BY ASSIGNESi. 



BeginniDg 
to keep 
houM. 



DeniaL 



the trader, who is in the house. But although this is the usual medium of 
proof, it IB not the only one ; for if a trader seclude himself in a priTate part 
of the house, in order to aToid his creditors, who are hy this means depriyed 
of access to him, he begins to keep house, and commits an act of bank- 
ruptcy (d). As where a trader remoyes from a part of the house where his 
creditors usually haye free access to him, to a more retired part of it, by 
means of which his creditors are preyented from importuning him(e). 

Under the stat. 21 J. 1, c. 16, where the eyidence of the act of bankruptcy 
consisted in the denial to a creditor by order of the trader (/), it was neces- 
sary to proye an actual denial (g) to a creditor (A) ; and it was held to be 
insufficient to proye a denial to an agent of the creditor (t), without proof 
that the trader knew him to be such agent, haying a present demand against 
the trader (A) ; or that the trader gaye orders to be denied to the creditor; 
but if he gaye a general order to be denied to aU, and was denied to a creditor, 
it was sufficient, although he wished to ayoid a different creditor (Q. Proof 
that the trader was in distressed circumstances, and that he was by his 
own order denied to seyeral persons, some of whom called more than 
once, was held to be eyidence to go to a jury of a denial to a creditor (m). 



(d) .1 Camp. S71; Com. Dig. Bakk- 
RUPT,[C.]1. Diddntonv.FoordfBaniei, 
160 ; Bobertsan y. LiddeU, 9 East, 487. 

(e) Dudley v, Vaughan, 1 Camp. 271. 
See also Chenaweth t. Hay, 1 H. & S. 
677; 1 Ttont 270. 470. R. y. Bel>b, 
cited I TA. Sl&, 354. Key v. Shaw, 6 
Biog. 921. Partners reside in the place 
in which they carry on business as bankers, 
and close the windows and shatters of the 
bank ; this is a beginning to keep house. 
Cumming y. Bayley, 6 Bing. 863. But is 
no act of bankruptcy by a partner who 
does not reside there. Mills v. Bennett, 
2 M. & 8. 566. Hawikini y. WhUten, 10 
B. k. C. 217. Bxparte Manor, 19 Ves. 
543. An order to be denied to creditors 
is but evidence of an intention to delay. 
Lazarui v. WaUhman, 5 Moore, 513. A 
general order to deny with that intent, or 
a general order to admit no one whom the 
servants did not Icnow, for fear of a second 
arrest, followed up by their admitting no 
person, without its being ascertained from 
the window who he was, is sufficient 
Harvey y. Ramihottom, 1 B. & C. 55. 
Or a general order to deny, and a begin- 
ning to keep house, is sufficient. Lloyd ▼. 
Heatheote, 2 B. & B. 388. Note, hi the 
latter case there was a denial to the col- 
lector of church and highway-rates. See 
Oimmingham y. Laing, 6 Taunt. 532; 
and see Bayley v. Sehqfield, 1 M. & S. 
338. 

(/) Dudley y. Vaughan, 1 Camp. 271. 
Bx parte Foster, 17 Ves. 416. 

(y) Garrett y. Mouie, 5 T. R. 675. 
Haxdher y. Smmders, Co. B. L. 79. Dud- 
ley V. Vaughan, 1 Camp. 271. 

(h) Per Lee, C. J., B. N.P. 40. A denial 
to a tax-gatherer is sufficient. Jqffkr, 
Smith, fiTtLunLAOl. 

(i) B. N. P. 39, 40; 1 Montague, 87; 
Barrow v. Foster, Green, 44. A denial 



to the clerk of a holder of a hill is suffi- 
cient. 2 T. R. 69. 

(*) 7 Vhi. Abr. 61, pi. 14, Bx parte 
Levi ; but a denial to the holder of a bill 
on the morning of the day when it be- 
comes due is sufficient. CoUtett v. Fret- 
man, 2T. R.60. 

(0 Muehlow y. May, 1 Taunt. 479; and 
see Coliett y. Freeman, 2 T. R. 50. 

(m) Jamieton y. Bamer, 1 Esp. 381. 
But in the case of Qarrett y. Moule, <5 
T. R. 695), the trader, being in expecta- 
tion that several bills would be presented 
to him for payment, was adyised by his 
friends to keep out of the way of his 
creditors, and he accordingly gaye orders 
to his clerk to be denied to every person ; 
he retired up-stairs with his account 
books, where he remained several days, 
and was denied to several persons, but it 
did not appear that they were creditors. 
A creditor on two bills of exchange to the 
amount of 1002. called, but did not ask 
for the bankrupt, understanding he was 
from home. The Court of K. B. held, that 
these circumstances did not constitute an 
act of bankruptcy ; and Ld. Keoyon ob- 
served, that the question on trials of that 
kind had always been asked, whether or 
not the debtor was denied to the creditor, 
which showed in what light the statute 
had been considered. See also Hamhet 
v. Saunders, Co. B. L. 79; B. N. P. 40. 
IV^otwithstanding tliis authority, it is pro- 
bable that such a case would have met 
with a different decision, even before the 
late statote. For, according to the prin- 
ciple established in Robertson y. LiddeU, 
(9 East, 487), it is not material whether 
the intention was carried into effect by an 
actual dehiy of any creditor. A denial is 
the mere medium of proof. A trader may 
have no servant or agent to deny him ; and 
then this medium of proof becomes inap- 



ACTT OF BAMKBUPTCT. 



137 



But under the late statute the actual delaying of a creditor leems to be DeniaL 
immaterial, except as a mean of proying the intent to delay, provided he be 
ftctuaUy denied or conceal himself, or do some other act which evidences the 
beginning to keep house. A mere direction to be denied, without more, is 
insufficient (»). But if a trader in his own house hear himself denied to a 
creditor, and, with intent to delay his creditors, does not' come forward, it is 
an act of bankruptcy, although he gave no direction to be denied (0). 

A concerted denial is not evidence of bankruptcy, except as against one 
who was privy to the concert (p). 

The presumption of an intention to delay a creditor, arising from denial, Intentioo. 
may be rebutted by any evidence which proves the denial to have proceeded 
from a different motive. As by evidence that the trader was sick at the 
time, or engaged in company, or that it was at a house where he does not 
transact business, and that he referred the creditor to his shop {q). So a 
refusal to see a creditor because it was the trader's dinner hour, is not an 
act of bankruptcy (r), or on a Sunday («)• As the bankruptcy consists in 
the act of seclusion by the trader with intent to delay his creditors, the 
intention with which the credUart call is immaterial (t). 

If a person upon being arrested choose rather (u) to go to prison than pay yield hjn^ 
the debt, although he has money sufficient, declaring that he does it in order self to 
to force his creditors to come to a composition, this is evidence of an act of P™^'^ 
bankruptcy, under the clause, or yield himself to prison (x). 



plieable. Hie fact of mtention is perfectly 

independpjit of any actual delay. The be- 

pnning to keep house must no doubt be 

mamfested liy some overt act of seclusion 

<m the part of the trader, and although he 

does not at all remove from the room or part 

of Uie house which he usually occupies, a 

denial to a creditor, through a servant, is as 

much an act of seclusion as if he had barred 

or nailed up the door; and a denial in such 

cue seems to be almost the only act by 

which the beginning to keep house can be 

manifested ; but where the trader actually 

removes from a more public part of his 

liOQse, which he usually occupies, to a more 

private one, and there secludes himself with 

the intention to delay his creditors, the act 

of bankruptcy seems to be as complete with- 

OQt proof of actual delay, as in the case of 

a departure from the dwelling-house or 

reahn with that intent ; and it was so held 

itt the ease of Dickenson v. Foord^ Barnes, 

160. And see Bayly v. Schqfield, 1 M. & 

8. 338 ; Bignold v. Waterhouse, Ibid. 256 ; 

DudleifY. Vaughan, 1 Camp. 271; Harvey 

V. Rttmsbottom, 1 B. & C. 66 ; Lloyd v. 

Heatheote, 2 B. & B. 388; Lazarus v. 

WatTAnum, 5Moore,313. Where the fact 

to be established was a mere denial of ttie 

defeodant being at home when the officers 

came to his house, it was held, that it being 

made by the wife did not prevent its being 

received, the answer being port of the res 

gnt^, Att,'gen, v. Gwde, 1 M. & Y. 

(x) Fisher v. Bouehery 10 B. & B. 706. 
See Lloyd v. Heatheote, 2 B. & B. 388. 
(0) Sndth V. ilfooit, M. k, M. 468. 
(p) B. N. P. 89, 40. Cowley v. Hop- 



Jdns, Ca B. L. 81. And see Lord Mans- 
field's observations in Hooper v. Smithy 

1 Bl. R. 442, and Bam/ord v. Baron, 2 
T. R. 606, n. In an action by assignees 
for money bad and received in respect of 
parcels of bills and cash handed over by the 
bankrupts in contemplation of bankruptcy, 
and by way of undue preference, it is no 
oljection to the act of bankruptcy (the 
execution of a conveyance of all their effects 
to trustees for the benefit of their cre- 
ditors) that it was made for the very pur- 
pose. Simpson v. Symes, 6 M. & 8. 206. 
Note, that the trustees were not privy to 
the transfer. 

{q) Per Ld. Mansfield, Bound v. Hope^ 
Co. B. L. 94, 6th edit. Field v. Bellamy, 
B. N. P. 39. But where the trader being 
HI directed his servant to say that he was 
not at home, it was held that it was a 
question for the Jury whether it was an 
act of bankruptcy. Lazarus v. Waith>' 
Yiton, 6 Moore, 313. 

(r) SnUth v. Currie, 3 Camp. 849; 
B. N. P. 39. And see Shew v. T&mpson, 
Holt's C. 169, where the direction was to 
deny the trader to any one who called 
whilst he was at dinner or engaged in 
business. Bee also Loyd v. Heatheote, 

2 B. & B. 392. 

(s) Bx parte Preston, 2 V. & B. 312. 

(0 Ex parte WhUe, 3 V. & B. 129. 

(u) This must be for debt in order to 
constitute an act of bankruptcy. Bx parte 
Bowes, 16 Ves. 168; and see 7 Price, 616. 

(x) Bx parte Barton, 7 Vin. Ab. tit. 
Crsditob and Bankrupt, 61, 62, pL 
16. 



138 



BANKRUPTCY : PROOFS IN ACTIONS BY ASSIGNEES. 



Frandolent 
conveyance. 



Proof of the 
conveyance. 



That the 
convey- 
ance, Sec, 
was fraa- 
dulent. 



In order to prove an act of bankmptcy under the words of the late statute, 
'' make or cause to be made any fraudulent grant, or conveyance of any of 
his lands, tenements, goods or chattels, or any fraudulent surrender of his 
copyhold, &c,, or make any fraudulent gift, delivery (y), or transfer (z) of 
any (a) of his goods or chattels," (b) it is necessary, in the first place, to 
prove an actual conveyance, gift, or delivery ; and 2dly, to prove that such 
conveyance or gift or delivery was fraudulent, and with intent to defeat or 
delay creditors. 

1st. A conveyance, when it is by deed or other instrumeut, must be proved (c) 
in the regular way by means of the subscribing witnesses. But as against 
a defendant, in an action for the value of goods attempted to be conveyed, 
his admission of the execution of the deed, on his examination before the 
commissioners, supersedes the necessity of proving the deed in the usual 
way by the subscribing witness (d). The deed or other instrument must be 
properly stamped (e). The conveyance will enure as an act of bankruptcy, 
although it is void through fraud ; as where an insolvent trader conveys to 
an infant son (f). 

2dly. That the conveyance, gift or delivery was fraudulent, and made 
with intent to defeat or delay creditors. It is fraudulent in point of law 
where the necessary effect is to prevent a fair distribution amongst creditors, 
contrary to the spirit of the bankrupt laws {g). As where the trader trans- 
fers the whole of his effects to particular creditors (A), to the exclusion of 



(y) The word '* delivery,* connected 
with the words '* gift or transfer," is to be 
confined in meaning to transactions of the 
same nature ; where therefore goods were 
removed with intent to delay a creditor, 
and delivered to a party having no claim 
over them, held that it was not an act of 
bankruptcy; and at all events, a delivery 
of the goods by the party's agent generally 
conducting his business cannot be so: a 
man cannot commit an act of bankruptcy 
by the conduct of his agent Cotton v. 
Jamety 1 Mood, fc M. C. 277. 

(2) A warrant of attorney given for the 
purpose of entering up Judgment In four 
days, and seizing the property of an insol- 
vent party, to the detriment of his general 
creditors, was held to be a charge, or a 
transfer of It, within the 7 Geo. 4, c. 57, 
s. 32, and void. Gumming v. SaUey, 6 
Bing. 369. Sharpe v. Thomas, 6 Bing. 
4!6. And see Doe v. Carter, S T. R. 
300. 

(a) It was sufiicient even under the stat. 
of 21 Jac. 1, c. 15, fhatpart was conveyed. 
See £x parte Foord, cited 1 Burr. 477 ; 
B. N. P. 40 ; Linton v. Bartlet, 3 Wils. 
47 ; Morgan v. Horteman, 3 Taunt. 243. 
But it was necessary to prove a convey- 
ance by deed, 

(b) The fraudulent transfer of a bill of 
exchange to a creditor is a fraudulent 
transfer of a chattel within the meaning 
of the 3d section of 6 Geo. 4, c. 16, and an 
act of banlmiptcy. Sharpe v. Thomas, 
6 Bing. 416. A sale of goods may be a 
fraudulent transfer within section 3 of 
4 Geo. 4, c. 16, but the Jury must be satis- 
fied that the purchaser must have known 



that under the circumstances of the sale it 
was done with intent to obtain the price in 
order to defraud his creditors. Cook v. 
Caldeeott, 1 C. & P. C. 315. 

(c) See Rust v. Cooper, Cowp. 635, per 
Ld. Mansfield, C. J. ; and Aston, J. in 
Martin v. Peto^ett, 4Bnrr.2478; 1 Esp. 
C. 68. Where A. and B. are partners, a 
fraudulent assignment by A,toB,ia not 
an act of bankruptcy by B, For proof of 
the deed, see Ind. tit. Dbbd. 

(<f) Bowles V. Langworthy, 5 T. R. 
866. 

(e) WhitweU v. JHmsdale, Peake's C. 
168. 

(/) Whittoell W.Thomson, I ^p.CeS, 

(g) Per Le Blanc, J. in Newton v. 
Chant ler, 7 East, 14& See Linton v. 
Bartlett, 3 WHs. 47. Wilson v. Day, 
2 Burr. 827. Compton v. Bedford, I Bl. 
R.362; 1 Burr. 484. See Lord Eldon's 
observations in Dutton v. Morrison, 17 
Yes. 199 ; and see Ex parte Foard, Burr. 
477 ; Hooper v. Smith, 1 Blacks. 441 ; 
JTeftfev.HommorMf, Cooke, 86; Harmon 
V. Fisker, Cowp. 617. 629 ; Kaye v. Bol- 
ton, 6 T. R. 134. So also Is a conveyance 
of all, with the exception of a small part. 
lUd, 

(A) Newton v. Chantler, 7 East, 145. 
Note, that the trader, when he gave the bill 
of sale was under arrest at the suit of the 
creditor to whom the bill of sale was given ; 
but tlie Court held that this made no difiei^ 
ence, and tliat the case was not distinguish- 
able from that of Butcher v. Sasto, Dong. 
294. But the Court held that the case of 
a partial transfer might be open to a very 
different consideration. In Thornton v. 



ACT OF BAKKRVPTCY. 



139 



any other (i), although the transfer be on trust for the benefit of all his FiBodolent 

creditors (k). ^°^«y- 

£5 . ance. 

So if it be of such part as when actually transferred would disable him 

from trading (;). 



Harffreacm^ 7 East, 549, Lawrence, J. ob- 
Berred, " If the bill of sale swept away, as 
it is said, the whole of the bankrupt's pro- 
perty, it woold be difficult to say that it 
was not made in contemplation of bank- 
ruptcy, because it would be in itself an act 
of bankruptcy ; and if so made in contem- 
platioD of buikmptcy, he must have in- 
tended to give a preference to the parti- 
cular creditor. And see Warseley y. De- 
piattatj 1 Burr. 467. The transfer of all 
the bankrupt's property to one of his cre- 
ditors is an act of bankruptcy, although 
the deed be executed by the bankrupt only, 
and not proved to have been acted on. 
Botcherby v. Laneatter, 1 Ad. & EU. 77. 
Si^fert V. Spooner, 1 M. & W. 714. See 
PuUinff V. Tucker, 4 B. & A. 382. An 
assignment, banAJide, and for value, so far 
as the vendee is concerned, is not an act 
of bankruptcy, although the trader medi- 
tated an absconding to defraud his cre- 
ditors, Baxter v. Pritchard, 1 Ad. & El. 
456. The sale of the whole of a trader's 
property Is not of itself an act of bank- 
ruptcy, and some &ct must be shown 
fnnn which fraud may be inferred. An 
assignment for benefit of creditors is not 
an act of bankruptcy, except in cases 
within the 4th section. See Boie v. Hay- 
each, 1 Ad. & £1. 461, Lord Tenterden's 
judgment. An assignment of part of the 
trader's property in trust to sell and dis- 
pose of the proceeds as he sbaU direct, is 
not of itself an act of bankruptcy. Jtohinr- 
ton V. Carrinffton, 1 Mont. Sc Ayr. 1 . And 
see Carr v. Burditt, 1 C. M. & R. 443; 
Abbott y. Bwrbage, 2 Bing. N. C. 444; 
Greenwood y. ChureHU, 1 M. & K. 646; 
Bekher y. Prittie, 10 Bing. 408. 

(t) It Is an act of bankruptcy If all the 
creditors do not concur. Eckhardt v. 
frOnm, 8 T. R. 140, vide ir|/^a, note (/). 
And if one only be excluded. Ex parte 
Poordy 1 Burr. 477. 

(ik) Button y. Morriton, 17 Ves. 190. 
And such an assignment is an act of bank- 
ruptcy, although none of the creditors have 
executed it, and though it has never been 
acted on, or out of the trader's possession. 
Botcherby y. Lancaster^ 1 Ad. ic £11. 77 ; 
3 N. & M. 383. S. C. 

(2) In Hooper v. Smith, 1 Bl. 441, Lord 
Mansfield says, " If a man makes over so 
much of his stock in trade as to disable 
himself from being a trader, this would be 
fraudulent; It would be, as I said in 
Compton y. Bedford (1 BUicks. 362), an 
assignment of his solvency." In Bastell 
V. Simp$on, 2 Montague's B. L. 263; 
Doug. 88, Ld. Mansfield observed, ** A 
man may be insolvent without being a 
baakmpty and a man may become a bank- 



rupt and yet be able to pay 26 #. in the 
pound : the reason why a man becomes a 
bankrupt who conveys away all his pro- 
perty is, that he thereby becomes incapable 
qf trading." Where the trader transferred 
one-third part of all his effects in considera- 
tion of a loan of 120 /., and being in iosol- 
vent circumstances, absconded two days 
after, it was held to be an act of bank- 
ruptcy. Linton v. Bartlett, 3 Wils. 47; 
and see Devon v. Watts, 1 Noy, 86. It 
must be of so much of Iiis property as to 
incapacitate him from carrying on bumness 
by the insolvency which would ensue. 
Wedge v. Newlyn, 4 B. & Ad. 831. And 
semble, even the transfer of property 
essential to the carrying on the business 
is not sufficient, without showing incapa- 
city to replace the property. lb. A trans- 
fer to bankers of a trader's leasehold pro- 
perty, with all his stock in trade, and also 
a poUcy of insurance, as a security for 
monies advanced and to be advanced, with 
a power of sale, and a proviso that the 
trader should retain possession till default, 
but not including all the trader's pro- 
perty, being made bonAJide, is not an act 
of bankruptcy. Carr y. Burdiss, 1 C. M. 
& R. 443. In the case of Balme v. Htd- 
^on, 2 T. & J. 101 ; 1 G. M. & B. 448, 
an assignment of machinery to a creditor, 
the trader having other property besides 
that assigned, does not on &e face of it 
amount to an act of bankruptcy, and is not 
an act of bankruptcy, although the parties 
would, if possession had been taken, have 
been unable to carry on their trade. But 
in the case of Baime v. Jewisonj K. B. 
Nov. 21, 1829, the same deed was held to 
be an act of bankruptcy, it being conceded 
on the trial that the question which the 
jury had before decided in reference to 
that deed, was not again to be submitted 
to the consideration of the jury, but that 
if the Court should be of opinion that on 
the (ace of it the deed was not an act of 
bankruptcy, the counsel for the defendant 
should be at liberty to move, it being ad- 
mitted that if the deed was to operate 
immediately, so as to put the property in 
the possession of the person in whose fiivour 
that deed was made, it would be impos- 
sible to carry on the business, and would 
therefore be an act of bankruptcy. The 
counsel for the defendant accordingly 
moved, but the Court was of opinion that 
the deed operated immediately, and that 
as its effect would be, that on possession 
taken, it would be impossible to carry on 
the business, it was an act of bankruptcy ; 
and that it was an act of bankruptcy by 
the party executing, although the other 
partner did not execute, there being no 



140 



BANKRUPTCY : PROOFS IN ACTIONS BY ASSIGNEES. 



Fraadolent In such case it makes no difference whether the transfer resulted £rom 
preference, the threats and importunity of the creditor, or was voluntary (m). But in 
such cases it is necessary to prove that the assignment will have the effect 
of preventing the trader from carrying on his business ; as by evidence of 
the general state of his affairs at the time. It is not sufficient to show that 
under pecuniary pressure he parted with articles essential to his business (»). 
Where the transfer to a creditor is partialy the question is whether it was 
voluntary on the part of the trader, and made with intent to give him a 
preference over the other creditors. If it was made voluntarily, and in 
contemplation of bankruptcy, it necessarily follows that it was intended 
to give a fraudulent preference, and therefore constitutes an act of bank- 
ruptcy (o). 

The question, however, in such cases of partial transfer is, whether the 
trader did in fact intend to give a preference to particular persons, to the 
prejudice of his general creditors (p), and in contemplation of bankruptcy. 



proviso, as in tlie case 17 Yes., for being 
void in case the other party did not exe- 
cute. Bat an assignment for the general 
benefit of creditors, assented to by all or 
by the generality (Inglis ▼. Cfrantf 5 T. R. 
530), is not an act of banlcmptcy. So 
where one of two partners conveyed all his 
freehold and copyhold estates in trust to 
raise money to facilitate a settlement with 
his creditors, the pecuniary assets of the 
firm not being sufficient to liquidate the 
debts of the nnn. Bemey v. Daoidtony 
1 B. & B. 406. Bemey v. Vyner, Ibid. 
482. 

(m) Neiffton v. Chantler, 7 East, 145. 
Thornton v. Hargreavei, Ibid. 544. But- 
cher V. EattOj Doug. 5^. Stewart v. 
Moodyy 1 C. M. &; R. 777. 

(n) Wed^ v. Newlyn, 4 B. & Ad. 381. 
As that a miller transferred his waggons 
and horses to a creditor, who arrested him. 
lb, A mere colourable exception has of 
course no operation. Ex parte Foord^ 
cited 1 Burr. 477. Compton v. Sec^ord, 
1 W. Bl. 362. Low T. SHnner, 2 W. BI. 
996. Bemey r. JDavidton, IB. ScB. 409. 
Bemey v. Vyner, lb. 482. 

(o) Ibid. And see Thornton v. Har- 
greavei, 7 Bast, 544. In that case the 
trader being pressed by a creditor for pay- 
ment, or for a security, executed a bill of 
sale of gfoods, apparently the whole of his 
stock, and immeliately left off business 
and became a bankrupt ; and It was held 
that as the bankrupt did not by the exe- 
cution of the bill of sale redeem himself 
from any present difficulty, the presump- 
tion was, that he acted not under the 
pressure of a threat of process, but with 
intent to give a fraudulent preference. 
See nHao fStffeonv, Sharpe, 6 Taunt 539 ; 
Smith V. Payne, 6 T. R. 152; Harmon 
V. Fither, Cowp. 117. And a voluntary 
payment under circumstances which might 
reasonably lead the trader to suppose bank- 
ruptcy to be probable, though not inevit- 
able, is fraudulent. Poland v. Glynn, 
2 D. & R« 310. 



(p) Pulling V. Twil^, 4 B. & A. 382. 
It is always a question of quo animo : Did 
he transfer to obtain relief or to favour 
the particular creditor? Did lie contem- 
plate bankruptcy? Did he yield to pres- 
sure ? Was the act capable of affording 
present relief? The bankrupts (country 
bankers) having suspended payments, and 
being in failing circumstances, the delivery 
of cash and notes by one of the partners 
to the town agent, with the view of re- 
ducing the balance, although no undue 
preference be intended by such partner, is 
to be taken as such, the insolvency of the 
hous^ being necessarily consequent; and 
cash delivered over by the other partners 
to the-agent, in the expectation and on con- 
dition of receiving support, which is not ren- 
dered, cannot be retained by the defendant. 
See Mont. B. L. — ^The bankrupt, in the 
habit of advancing sums to his son, the de- 
fendant, for maintenance and discharge of 
his bills, gives him a sum of money on the day 
when he stops payment, knowing himself 
at the time insolvent, but not expecting to 
become bankrupt ; the question is wheUier 
it was paid in the ordinary course in which 
he maintained him, in which case the as- 
signees cannot recover it back, or whether 
it was for the purpose of securing him an 
advantage over, and to give him a benefit 
at the expence of the creditors. Abell v. 
Daniell, 1 Mood. Sc M. C. 370. The cases, 
observes Lord Kenyon ( Whitufell v. Thomp- 
son, 1 £sp. C. 78), where the assignment 
by a trader of his property has been deemed 
fhiudulent and an act of bankruptcy, have 
been where it has been made for a by-gone 
and before contracted debt; but that it 
never could be taken to be law that m 
trader could not sell his property when 
his afiairs became embarrassed, or assign 
them to a person who could assist him in 
his difficulties, as a security for advances. 
The bankrupt before any act of bankruptcy, 
having a large order to execute for the 
East India Company, obtained fh>m the 
defendants advances to enable him to exe- 



ACT OF BANKRUPTCY. 



141 



A frandnlent intention, in the ordinary sense of the word, is not essential Fraodnleiit 
to a frandulent preference ; neither is any privity on the part of the creditor P'«creiice. 
necessary (q). 

It has been held that, althoagh the fact that the trader at the time of the 
transfer contemplated bankruptcy be strong, if not absolutely conclusive 
evidence of fraudulent preference, it is not essential to such proof. Where 
a trader conveyed an equity of redemption, to which he was entitled, to 
particular persons, and it was found by the jury that the conveyance was 
fraudulent, and made with intent to give a preference to those persons to 
the prejudice of the general creditors, it was held to be an act of bank- 
niptcy, although the trader continued to carry on his trade, and no com- 
mission issued till three years after (r). 

But according to later authorities, it seems that in case of a partial trans- 
fer, it is necessary to show, not only that the preference was voluntary, but 
that it was given in contemplation of bankruptcy («). 



esteit,npon an agreement that they should 
nceiTB Uie amount of the order f^m the 
Company and repay themselves, which they 
accordingly did ; held that it amounted to 
an equitable assignment of that particular 
fond, and was not a fraudulent preference/ 
to which there must be both an insolvency 
io the trader, and a voluntary payment or 
tnnsfer by him. Hunt y. Mortimer, 10 B. 
A C. 42. And it seems that a payment 
made in puiauance of a previous contract, 
caonot be deemed the result of a prefer- 
enee. Vachar v. Cocks, 1 B. & Ad. 145. 
A lale by a trader of goods for ready mo- 
ney, under circumstances which ought to 
Iiave led the buyer as a man of business to 
entertain suspicions of an intention to de- 
fraud creditors, is an act of bankruptcy, if 
tbe jury so find it Cook v. Caldecott, 1 
Hood. & M. C. 622. 

(q) Per Bayley J. Poland v. OlynUy 2 
D. & R. 310. Harmon v. FUher, Cowp. 
117. If a man*s circumstances be such as 
to fidrly lead him to believe bankruptcy in- 
evitable, and he voluntarily makes a pay- 
ment to one creditor to the exclusion of 
the rest, it is a fraud witliin tlie statute. 
Per Gibbs, C. J., Fidgeon v. Sharp, 6 
Taunt 689. The bond fide payment of a 
jnst debt fraudulently and in contemplation 
of baidLmptcy, is an act of bankruptcy. 
Btnan v. Nvnn Bmg. 107. Although 
the transaction took place four months be* 
fore the commission issued. Ibid, 

(r) Puilwff V. Tucker, 4 B. & A. 382. 
In Smith V. Payne, 6 T. R. Ld. Kenyon, 
C. J. laid great stress on the circumstance 
that the trader did not contemplate bank- 
ruptcy at the time. In Pulling v. Tucker, 
the deed recited tliat three persons men- 
tioned, had agreed to advance to the trader 
spedfled sums of money, payment of wliich 
was admitted to have been made at the 
time of the execution of the deed, a receipt 
being indorsed on the back, signed by the 
trader (the defendant) and witnessed by 
his daks. It was proved that no money 
passed when the deed was executed, that 
two of the parties stated to have advanced 



the money were the defendant's brothers, 
and the third proved that lie knew nothing 
of the transaction. The Court lield that 
the question, as above stated, had been 
properly left to the jury, on the authority 
of Morgan y. Horteman, 3 Taunt 241. 
In that case, it was held that a deed 
whereby a debtor being pressed conveyed 
estates in trust to sell, and to pay the 
pressing creditor, with a further trust to 
pay hia debts to certain relatives, in order 
to give them an undue preference, was 
an act of bankruptcy. In tint case 
(Abbott, L. C. J. observes), it was, it is 
true, expressly stated that the deed was 
executed in contemplation of bankruptcy ; 
but Mansfield, C. J. lays no stress on that 
conveyance, for he expressly says, a con- 
veyance either of all or of part of a man's 
property in favour of fewer tlum all his 
creditors is an act of bankruptcy, because 
it is the means whereby the creditors may 
be defeated or delayed." Abbott, C. J. 
farther observed, that if it were material 
that the deed should have been executed 
in contemplation of bankruptcy, there was 
strong evidence of the fieuit For the bank- 
rupt being in insolvent circumstances, 
cokveys his real estate to certain persons 
as a security for debts then due, or any 
other debts wliich might become due. 
Such a deed given under suoh circum- 
stances would make bankruptcy inevit- 
able, and a man must be supposoi to con- 
template the consequence of his own act 

(«) Morgan v. Brundrett, 6 B. & Ad« 
289. Gimm v. PhiUtpe, 7 B. & C. 629. 
Poland V. Olyn, 4 Bhig. 22. And this 
is a question of &ct under all the circum- 
stances of the case. Poland y. Olyn, 4 
Bing. 22. Flocke v. Jonet, 4 Bing. 20; 
Doug. 85. Atkinson v. Brindall, 2 Bing, 
N. C. 26. See Devon v. Watts, Doug. 
86. An assignment by an insolvent is void 
if made with the intention of petitioning 
the Court for hia discharge, althonah it be 
made more than three months before the 
commencementof his imprisonment Becke 
Y.5mi7A,2H. &W. 191. 



142 



BANKRUPTCY .* PROOFS IN ACTIONS BY ASSIGNEES* 



Fraudulent 
preference. 



In such instances, however, that is where the transfer is partial, it in 
usually a question to be decided by the aid of extrinsic evidence, under all 
the circumstancs, whether it was done in order to give a fraudulent pre- 
ference to the indiTidual to the prejudice of the creditors in general, and in 
contemplation of bankruptcy. And for this purpose it may be material to 
show the situation of the trader and his affairs at the time, that he was 
insolvent at the time, and knew that he was so (f ) ; it is necessary to show 
that he contemplated bankruptcy. So it is material to prove circumstances 
which show a motive for undue preference ; such as the relationship of the 
trader to the transferee, or acts or declarations of the trader at the time of 
the transfer, manifesting an intention to show favour ; suspicious circum- 
stances attending the transfer itself; that it was made on the proposal of the 
trader (u), at an unseasonable hour {x) ; that it was executed in secret (y) ; 
that the conveyance, &c. is falsely dated (z) ; that its terms are general, 
where in an ordinary case they are usually specific (a) ; that it was made to 
secure a sum not due (6), or a larger sum than was due (c) ; that the trader 
suppressed evidence by which the real nature of the transaction might be 
elucidated (d) ; that the property conveyed constituted the whole or a con- 
siderable part of the trader's effects (e) ; that the bankrupt soon afterwards 
ceased to trade, or absconded. 

Evidence in answer to a case of voluntary or fraudulent preference, where 
the facts are not conclusive, consists of circumstances tending to show that 
the transaction was not voluntary on the part of the trader, but was the 
result of importunity or compulsion (/). It is not voluntary if it be made 



(0 Newton y. Chantler, 7 Bast, 138. 
The question, as regards contemplation of 
bankruptcy is not wliat was the real state 
of the trader's affairs, but what was the 
state of his affairs in his own judgment. 
Belcher v. PrUtie, 10 Bing. 408. 

(u) See Crosbys. Crouch, 11 East, 256. 
Smith V. Payne, 6 T. R. 152 ; Myleton v. 
Butler, 2 B. & P. 283; ii^fira, note (z). 
It is not necessary to shew tliat the bank- 
rupt took the first step. Morgan ▼. Brun^ 
flretty 5 ^. & Ad. 289. It has been held, 
that it is not sufficient to show an Intent 
to favour third persons. Abbott v. Pom- 
fret, 1 Bing N. C. 462; but qu. 

(x) Compton y.Be^ord, 1 Blacks. 36^, 
where the assignment was at midnight. 
Harman v. Fisher, Cowp. 117, where the 
transfer was at fiye in the morning, after 
sitting'up all night. Harttluum v. Slodden, 
1 B. & P. 582. See below, note (/). 

iy) TKt/ion V. Day, 2 Burr. 827. Jacob 
V. Shepherd, Burr. 478 ; and see Tvoine^i 
Case, 3 Co. 8. 

iz) Ingleton v. Btaier, 2 B. & P. 263. 
The acceptor of a bill of exchange, two 
days before the bill becamd dne, called on 
the indorser and stated that he was in- 
solvent ; the indorsee insisting on payment, 
the acceptor paid it, and four days after^ 
wards became bankrupt ; the bill had been 
altered so as to fall due before the trans- 
action, but without the indorser's (the 
defendant's) knowledge; the jury were 
directed that there was strong ground to 
infer fraud, and that the inference, as far 



as related to the bankrupt, was strengthened 
by the alteration. Lord Bldon, C. J. dis- 
tinguished the case from that of Smith t. 
Payne, 6 T. R. 162, on the ground that 
there the creditor came to the debtor, and 
the security was taken for a debt actually 
due. 

(a) The generality of the gift, without 
any exception, was one of the indicia in 
Twiners Case ; 3 Co. 81 ; the maxim being 
dolus versatur in generalibue. In Jacob 
?. Shepherd,BxiTT. 478, Ld. Mansfield, C. J. 
in assigning reasons for the validity of the 
instrument, obserres that the deed was of 
specific goods. See also Wilson v. Day, 
2 Burr. 827 ; Alderson v. Temple, 4 Burr. 
2235; and see also Montague's B. L. yoL i. 
p. 66 ; Deacon, B. L. vol. i. p. 442. 

(b) See note(z); and Pulling v. Tucker, 
4 B. & A. 382. 

(c) Wilson V. Bay, 2 Burr. 827. 

(d) Alderson v. Temple, 4 Burr. 2235. 
Worsely v. Bemattos, Burr. 467. Bevon 
V. Watts, Doug. 86. 

ie) Thornton v. Hargreaves, 7 East, 549. 
/) Either a demand of payment of a 
debt dne, or a demand of further security, 
repels the presumption of voluntary pre- 
ference. See Ld. Eltenborough's observa- 
tions in Crosby v. Crouch, 11 East. 256. 
And secrecy in tlie mode of delivery wUl 
not make it fraudulent where it is not other- 
wise fraudulent ; as where a creditor de- 
mands a security for a running debt. See 
Lord Ellenborough's observations. 11 East, 
261. 



ACT OF BANKRUPTCY. 143 

under the appTebension that a degree of force, cItII or criminal, is about to Prandnlent 
be applied (^). It is not necessary to show that any threat was used ; it is preference, 
sufficient if the act be the result of pressure and importunity on the part of 
the creditor (A). If urgency be used it rebuts the presumption of voluntary 
preference (t). A, having in September discounted three bills for B,y after- 
wards suspecting his credit, required a security to be put into his hands, 
and B. accordingly, at diflferent times between November and February, 
deposited books to the amount of 800 L with him, to be sold by him for his 
own benefit, in case the bills should not be paid by the acceptors; the 
books were chiefly brought by B» in a hackney-coach, in the evening ; B, 
committed an act of bankruptcy in March, and A, had then the bills 
unpaid in his hands. Upon an action brought by the assignees, they were 
nonsuited on the ground that there was no voluntary preference, since the 
bankrupt parted with the books upon the defendant's importunity; and 
although the bills were not due, the defendant was liable upon them, and 
had a right to a further security (A). 

Wbere B. had property to a large amount at the Custom-house, which 
stood in his own name, but which he had purchased with A.'b money, and 
there was evidence to show that he had been induced to transfer the whole 
to A^ under the apprehension that A, would prosecute him for the forgery 
of a bill which he had deposited with il. as a security, it was left to the 
jury to say whether the transfer was voluntary, or was made under the 
apprehension that a degree of force, civil or criminal, was about to be 
applied; and Lord Ellenborough informed them, that every thing which 
might overcome the free-will of the party was sufficient to exclude a volun- 
tary preference (/). So payment to an obligee, who importunes for payment 
before the forfeiture of the bond, is good (m). 

Where a trader, in contemplation of bankruptcy, voluntarily sent his 
clerk to pay the amount, but before the payment the creditor applied for 
paymenty it was held to be good (n). This was on the principle that the 
preference intended was not communicated; but the authority of this case 
has been questioned (o). 

Where the holder of a bill promised the acceptor, whom he knew to be 
insolvent, that if the bill was paid he would effect a composition with his 
creditors, the preference was held to be fraudulent (p). 

ig) D« Tagtet v. Carroll, 1 Starkie's C. (k) Crotby v. Crouch, 2 Camp. C. 166; 

^; and see Atkint v. Seward, cor. Hoi- 11 Bast, 226. 

royd, J. Winchester Spring Ass. 1819, (Z) VeTcutety, Carroll,! StaikW^C. 

Maiining'a Index, 2d edit. 63. The bank- 88. 

nipt stated that he paid the money after .a (m) Hartthom and oihert y. Slodden, 

threat of arrest, partly with a view of re- 4 £sp. C. 60; 2 B. & P. 682. TJunnpton 

iK-ving his father from liability ; it is for v. Freeman, 1 T. R. 155. Thornton v. 

tiie jury to consider the motives and in- Hargreaves, 7 East, 544. Crotby y, 

tention of the bankrupt, in order to ascer- Crouch, 1 1 East, 256. Belcher v. Jones, 

tain whether the payment was in fact made 2 M. & W. 258. 

in consequence of the threats. Cook v. (n) Bayley v. Ballard, 1 Camp. C. 416. 

^ogen ,7 Bing. 438. Barman v. Fisher, (o) Singleton v. BtUler, 2 B. & P. 283. 

Cowp. 117; but see Bayley y. Ballard, And see Coohe v. Rogers, 7 Bing, 446. 

1 Camp. 416. Tlie real question seems to be as to the 



See Smith v. Payne, 6 T. R. 152. ultimate motive of the trader ; whether he 

(0 Per Ld. Ellenborough, in Crotby v. yielded to the demand, or availed himself 

CrottcA, 2 Camp. C. 166; II East, 256. of the opportunity offered to give a frado- 

In Ilartsham v. Slodden, 2 B. & P. 582, lent preference. 

Ld. Alvanley was of opinion, that if the (p) Singleton v. Butler, 3 Esp. C. 215 ; 

creditor preased for payment, the intention 2 B. & P. 263. Smith v. Payne, 6 T. K. 

of the bankropt was not material. See 152. 
BeteAer t. PrUtU 10 Bmg. 407. 



144 



BANKRUPTCY : PROOFS IN ACTI0K8 BY ASSI6NSB8. 



Continu- 

«neeof 

posBesfiion. 



Proof of 
privity to a 
fraudulent 
deed* 



Where a trader purchased goods on the 8th of October, for the purpose of 
exportation, but finding that he must stop payment, and that he could not 
export them, returned them on the 16th of October to B,, the vendor, and 
stopt payment on the 17th ; and his creditors refusing him time, he became 
a bankrupt on the 2d of November : it was held that the jury were warranted 
in finding that the delivery of the goods to B, was not in contemplation of 
bankruptcy (q). 

Where a creditor obtained a preference not fraudulent, with a view to an 
intended composition with creditors, but without any view to a bankruptcy, 
and the composition never took place, but the trader afterwards became 
bankrupt, it was held that the creditor was entitled to retain his securities (r). 

Where a sale has been completed by the actual delivery of goods to a 
trader, before payment, he cannot give the vendor a preference by rescinding 
the contract and returning the goods («). But where goods in transitu are 
given up by the trader, it is a question for the jury whether they were given 
up bonAfide, and without any motive of undue and voluntary preference, 
although the trader was on the verge of bankruptcy (t). 

Goods were sent to a trader in February, with an option, according to the 
course of trade, of returning them; he having done no act to determine his 
option, on the 4th and 5th of March returned the goods, requesting a written 
approbation of this act, being then insolvent ; such approbation was not 
given till after the bankruptcy, and it was held that the property passed to 
the assignees (u). 

The fact that the property conveyed remained after the transfer in the 
possession of the trader, is strong, and being unanswered, is conclusive evi- 
dence of fraud (x). For the trader thereby obtains false credit to the decep- 
tion or prejudice of his creditors (y). But this fact is not conclusive evidence 
of fraud ; it may be explained by circumstances (z) which show that such 
possession was given as the nature of the case will admit of. 

The engineer of a canal company borrowed money from the company, in 
order to pay his creditors, and executed a bill of sale of timber, and other 
articles of his property, deposited on the premises of the company, (which 
he had bought with money advanced by them,) and delivered them to the 
company by the delivery of a copper halfpenny ; and the Court held that 
since such possession had been delivered to the company at the time of exe- 
cuting the deed, as the case admitted of, the deed was not fraudulent (a). 

In general, one privy to a fraudulent deed, cannot set it up as an act of 
bankruptcy (b) ; and it would be a fatal objection to show that the petitioning 



(ff) Fidgeon v. Sharp^ 1 Marsh. 196. 
And see Moors v. Sarikrop^ 1 B. & C. & 

(r) Wheslwright v. Jaeluon^ 6 Taunt. 
109. 

(«) Barnes v. FreOandy 6 T. R. 80. 
See HaswsU v. Hunt, 5 T. A. 321 ; Neats 
V. Bail, 8 East, 117. 

(0 JDizon V. Baldwin, 5 East, 175. 

(u) Neate v. BaU, 2 East, 117 ; inflra, 
111, note (y). 

(x) A conveyance of goods without deed 
is fraudulent, unless possession be given; 
If it be by deed, it Is fraudulent, and an act 
of bankruptcy. Per Ld. Kenyon, C. J. in 
MmUcn v. Moore, 7 T. R. 71. 

(y) Mamton v. Moore, 7 T. R. 67. 
WorseUy v. Bemattot, 1 Burr. 467. A 
trader being in distressed circumstances, 



assigns aU his estate to a creditor as a 
security for an unliquidated sum, without 
delivering any kind of possession, except 
by giving a letter of attorney to his own 
clerk to collect debts. Hie assignment 
was held to be fraudulent, on the ground 
of undue preference, and beisanse there had 
been no alteration of possession. Wilson 
V. Bay. 2 Burr. 827. 
(z) Per Ld. Mansfield, 1 Burr. 484. 

(a) Manton v. Moore, 7 T. R. 67 ; and 
see below, RspurBn Ownbrsrip. 

(b) Jackson v. Inoin, 2 Camp. 49. 
Bastard v. Baron, 2 T. R. .594, n. Tap- 
penden v. Burgess, 4 East, 280. Tope v. 
HoeHn, 7 B. A: C. 101. Barbs v. Qooeh, 
Holt's C. 13. 



ACT OP BANKRUPTCY. 



145 



creditor vas a party, or privy to the fraudulent deed ; but if he was not 
privy, it is no objection that the co-plaintiffs being co-assignees with him, 
were privy (c); and it is no objection that the petitioning creditor was party 
to a deed of trust, by which the bankrupt assigned certain property for the 
benefit of his creditors, in consideration of which they released their debts, 
it having been afterwards discovered by the petitioning creditor that the 
bankmpt had previously committed a secret act of bankruptcy (d). 

Or having been arrested or committed to prison for debt, &c. (e) shall on Lying in 
such arrest, or on any detention for debt, lie in prison for twenty-one pnioD, &e. 
days, &c. 

To establish an act of bankruptcy by lying in prison (/), it must be shown 
that the trader lay in prison twenty-one days before the issuing the commission; 
i subsequent lying in prison will not give effect to a previous commission (g). 

It was held under the stat. 21 J. 1, c. 1, that a commission issued fifty-six 
days mchmvdy after the arrest was good (A). . 

A trader being arrested on the 4th, was at large till the 8th, when he re- 
torned into custody \ on the 10th he was removed by haheas corpus into the 
King^s Bench, where he remained more than two months ; and it was held 
that the act of bankruptcy related to the 8th (i), since there must be a con^ 
tinuous imprisonTnent of two lunar months. 

A trader being arrested put in bail, and afterwards surrendered in discharge 
of his bail ; it was held that the imprisonment was to be computed from the 
surrender, and not from the arrest (A). But where a trader was sick at the 
time of the arrest, and could not be removed, but continued in the custody 
of a follower, the imprisonment was reckoned from the arrest (/); so where 
he has had the benefit of the rules during the period (m) ; and so it was 
where mere formal bail were put in before a Judge, to get the trader turned 
over to the prison of the court, upon which he was surrendered, and sent 
there, for there was an entire continuous imprisonment from the tiine of the 
arrest (n). 

A commission issuing before the time has expired cannot be supported, 
hut it is otherwise as to a commission which issues after the docket is 
struck (o). 

Or having been arrested, shall escape, Sfc. Escape. 

A prisoner having been arrested in Kent, and brought up by habeas carptts 
to be bailed, was permitted by the sheriff to call at a house in London, and 
it was held that the passing through another county, by the permission of 
the sheriff, did not amount to an act of bankruptcy (p). 

The arrest or detention for debt in these cases should be proved by an 



(c) Tappenden v. Burgess, 4 East, 230. 
Dvttcn v. Morrison, 14 Yes. 193. 

(i) Boe V. Anderson, 1 Starkie's C. 262. 

<e) A penalty due to the Grown for 
tmnggUngis within this statute. Cobb 
r. Symonds, 5 B. & A. 610. 

(/) Shtpra» 

ig) Moses V. Nevoman, 6 Bing. 556. 
S(« HiggiM v. M'Adam, 3 Y. & J. 1. The 
trading must be before the imprisonment. 
Ex parte Lynch, 1 Mont. & Bl. 453. 
(ilamn^gUm v. Baiolxns, 3 East, 407 ; 4 
E»p. 221. Gordm y, WUkxnson, 8 T. R. 

TOU II. 



507. Bnt see 2 Show. 512 ; 14 Yes. 80. 83. 
Wydoum^s Case, Ibid. 

{h) 3 East, 407. See Com. Dig. tit. 
TbmpsJ Laeon v. Hooper, 6 T. R. 224. 

(») Barnard ▼. Palmer, 1 Camp. 509. 

(ft) Tribe v. Webber, WiUes, 464 ; 1 
Burr. 438. 

(l) Stevens v. Jackson, 4 Camp. 164. 

(m) Soames v. Watts, 1 C. & P. 400. 

(n) Bote v. Oreen, 1 Burr. 437. 

(o) Gordon v. Wilkinson, 8 T. R. 507. 
Ex parte X>t{fresne, 1 Y. & B. 51. 

(p) Boss V. Oreen, Burr. 437. 
L 



146 



BANKRUPTCY : PROOFS IM ACTIONS BY ASSIGNEES. 



Petitioning 

creditor'* 

debt 



examined copy of the writ (if returned), and return of eepi carpus, the 
warrant, and arrest, or hy the habeas corpus and commitment {q) ; and the 
feet of lying in prison twenty-one days, may be proved either by any person 
acquainted with the fact, or by the books of the prison (r). 

The act of bankruptcy has relation to the time of the arrest or going to 
prison (I), and the property rests in the assignees from that time. 

By the Insolvent Act, 7 G. 4, c. 57, the filing a petition to take the benefit 
of the Insolvent Act is, in some cases, an act of bankruptcy, provided the 
^arty he declared bankrupt before the time advertised in the Gazette for 
hearing the petition, or within two calendar months from the filing of it 
An office copy of the petition is made evidence of the act. The filing is not 
complete till it reaches its destination in the proper office {t). 

In order to establish an act of bankruptcy against a Member of Parlia- 
ment, for not paying or securing his creditor a debt of 100 Z., after the suing 
out the writ of summons, &c., under the'stat 4 G. 4, c. 33, it is not abso- 
lutely necessary that such creditor should be called (u). 

The assignees may rely on any act of bankruptcy previous to the issuing 
of the commission, and are not limited to that on which the commission 
was founded (x).' 

Where the flheriff took possession under an execution, and afterwards on 
the same day the bankrupt surrendered, it was held that the assignees were 
not entitled to recover against the execution creditor (y). The property 
Tests in the* assignees by relation only from the moment of the surrender or 
arrest («). 

Fourthly, It is necessary to prove that the petitioning creditor's debt (a) 



{q) Salts V. Thomas, 3 B. A: P. IBS. 
The prison books are not evidence of the 
cause of commitment 

(r) Salts V. Thomas, 3 B. & P. 188. 

(«) King v. Lsiih, 2 T. R. 141. And 
see the provision of tiie stat 6 G. 4, c. 16, 
sfspttL, 130. 

{t\ Oarliek v. Songster, 9 Bing. 46. 

(u) Burton v. Green, 3 Car. & P. C. 
306. 

{x) Reed v. James, 1 Starkie's C. 134. 
Hopper V. Richmond, Ibid. 507. 

(y) Thomas v. Detanges,2 B. k. A. 686. 
See also Sadlsrr. Leigh, 4 Camp. 197. 
And see tit Timb ', and the stat 6 G. 4, 
c. 16, 8. 108. 

{z) Ibid. And Gordon v. WiXHnson, 8 
T. R. 607. King v. Leith, 2 T. R. 141. 

(a) By the stat. 6 G. 4, c. 16, s. 16, no 
commission sliall be issued unless the 
single debt of such creditor, or of two or 
more persons being partners, petitioning 
for the same, shall amount to 100 1, or up- 
wards, or unless the debt of two creditors 
so petitioning shall amount to 160 L, ice, or 
unless the debt of three or more creditors 
so petitioning shall amount to 200 L, kc. 
And that every person who has given 
credit to any trader upon valuable conside- 
ration for any sum payable at a certain 
time, which time shall not have arrived 
when such trader committed an act of 
bankruptcy, may so petition or join in 



petitioning as aforesaid, whether he shall 
have any security in writing or otherwise 
for such sum or not A commission on 
the petition of ^buir cr^diiborB is good, 
although it does not appear on the face 
of the affidavit that the debts amounted 
to 2001; piW bein^ given at the 
trial that they amounted to that sum. 
HiU V. Heale, 2 N. R. 196. 100 Z. m 
notes bought at 10 #. each is sufficient JSx 
parte lee, IP. W. 782. The 7 Geo. 4, 
c. 46, s. 9, and 1 Sc2 Yict c. 96, are to be 
taken together ; and held that the public 
officer thereby authorized to sue any mem- 
ber of a joint-stock banking company may 
sue out a Jiat in bankruptcy against such 
member. Hall, ex parte, 3 Deac. (b. c.) 
406. Ilie d^bt must be a legal one — a 
promissory note made in violation of a 
statute cannot be proved, and consequently 
cannot form a good petitioning creditor's 
debt, jS^ parte Randleton, Mo. & M. 86. 
See further as to the petitioning cre- 
ditor's debt, Ex parte Buck, 4 B. & C. 
880; Bleasby v. Crosslin, 8 Sing. 434; 
Flack V. Jones, 4 Bing. 20 ; Shaw v. 
Hervey, 1 M. & M. 626. S^t. 8 provides 
that payment to the petitioning creditor 
after the docket struck shall be an act of 
bankruptcy. See Rose v. Maine, 1 Bing. 
N. C. 367. JSx parte Vernon, 2 Cox, 61. 
JBxparte Paxton, 16 Tes. 463. 



PBTITIONINO CREDITOR S DEBT. 



147 



existed at the time of the act of bankruptcy (6), and also that it existed Petitioniog^ 

whilst the party was a trader (c). creditor'* 

^ "^ ^ ' debt. 



(b) Mou T. SfnUhy 1 Gamii. 480; 46 
0. 3, c 135; 14 Yes. 80-3. /iSiA yfhe^ 
the proceedings uiider the commission 
merely sho%^ that'the debt existed ai t^e 
date of the poQifiiasioR, and not that it er-* 
isted at the time of the a«^ o^ ba^mptcyy 
it was held to be in^ufiicieht {CtaAe v. 
AHmn, ] Starkie's €. 468 ; 14 East, 197; 
tJi/ra, 149). In Wright t. hahwmy ^^L 
ic W. 739, it was held that an I. O. U. 
betriog date before the bankruptcy was in-. 
fBffident without proof that it was in ex- 
istence before the bankniptcy. Setthe-obh 
serratioofiof Lord Abinger and Alderson,B 
OD this case, in Ooodiitle v. Milbum, lb. 
m, 860. Bat it the note be proved «b be 
ifl existence before the docket struck, the 
&te previous to* the bankruptcy is avi- 
ience of its previous existence. OUbard 
T. BeUutne, M: & M. 486. And its ton^ 
tinned existence up to the time of ^^ act 
wiD be presumed. Jackion v. Irunnt 2 ^ 
Camp. 50 ; unless ofher transactions have ' 
intervened. Greily v. Pric^, 8 C. & P. * 
48. Such previons existence may ,be evi* 
deaced by circumstances ; as if it can be 
iiiowB that aboitt the date of the bill, 
goods were sold of corresponding amount. 
Count w. Barrif, M. & M. 141. As ta 
tbe effect of an act of bankruptcy pripr to 
the petitioning creditor's debt, vide ir^fra, 

(e.) Dmee v. Uoldswarth, Peake, S. (X 
64 ; Meggiftt v. MilU, 12 Mod. 157 ; 1 
U. Ra>in. 286; 1 Montague's B.L.33. 
Butcher v. EastOp Doug. 282; Heanne^ 
T. Birch, 3 Camp. 234. Where the party 
before be became a tipader became indebted 
to the petitioning creditor in a sum.ex* 
ce^ng 100 /., and afterwards became » 
trader, but ceased to be such at the timet 
of committing an act of tmnkruptcy, it was 
held, that the commission might be sup- 
ported upon such debt and act of bank-< 
niptcy. BaUiev. Grant, 9 Bfaig. 121. 
Where there existed at the time af the act 
<>f bankruptcy a sufficient debt on which 
a commission might liave issued, and also 
at the time of its issuing, and the balance 
throDgbout continning sufficient for that 
pDrpose, it is not material that payments 
^ in the interim been made more than 
^cient to discharge the .balance due at 
the time of the act of bankruptcy, ^Aat0 
^. Harvey, 1 M. & M. 5!^a Taxed 
costs upon a judgment, as ' in case of non- 
s^t, being only recoverable by attachment, 
do not constitute a sufficient petitiohing 
creditor's debt. Ex parte Stevenson, 1 
H. k H. 262. Where the petitioning cre- 
ditor had sworn to a debt for fnon^ ad- 
v^inced, it being only part of the amount 
of pnrchase money of premises ^hich were 
sQrrendered to him by way of mortgage, 
he)d, that it being only an equitable debt. 
It would not support a commission. Ex 
parte Hawthorne, 1 Moat 132. Notcj* 



of the bankrupts given for a pre-existing 
debt^ payable at S. on demand, are a suffi- 
cient debt to support the commission, 
althdugh no demand has been previously 
made at ^. 6 M. & 8. 885. A trader 
by deed conveyed all ibis personal estate to 
four persons, ip trust to pay and discharge 
his debts, &c., bontalning a proviso thai 
the sa<4» parties, trustees and creditors, 
should, on or before  next, make 

such, proof (of debts) if required, and ex- 
ectite these presents, with a covenant not 
to soe, opemting as a release by the cre- 
ditors signing it; two only of the said 
trustees executed the deed, and not tlie 
others ; held, that the effect of the words 
of such proviso was not to avoid the deed 
if the parties therein named should not 
execute it, but merely to take away from 
such parties the right to recover a divi- 
dend ; the. debt therefore of a party ex- 
ecuting it was extingulshedy and would 
not constitute a petitioning creditor's debt 
to found a commission. Small v. ilfar- 
wootL 9 B. & C. 30&4 Where the debt 
was for money lent on a mortgage, pay^* 
able after six months' notice, but not to 
expire before a day stated, it was held 
mffident to support a commission sued 
out before that day. HUl v. Harris, 1 
M. k, M. 448. Partners, npon being 
appointed treasurers to a company, exe- 
cuted a johit and several bond, condi- 
tlbned amongst other things, when there- 
unto required, to pay over balances, &c. ; 
held, that upon their bankruptcy before 
any request made to pay, &e., it was not 
a sufficient breach to constitute an exist- 
ing dabty proveable against their separate 
estates. Ex parte. Lancaster Can, Co,, 
L Mont 27. Held atoo^ that it could not 
be considered a contingent debt, within the 
6 Geo. 4, c. 16, s. 56, to give a right of 
proof, under which there must be an actual 
debt dependent on a contingency. lb, 
Three.parties Jointly indebted, covenanted 
jointly and severally on demand to pay ; 
Bind the deed also contained a stipulation 
that any debt existing previons to such de- 
mand should remain a debt, in like manner 
as if no covenant had been entered into, it 
being intended only as an additional secu- 
rity ; held, that until actual demand the 
debt remained Joint only, and was proveable 
against the joint estate only, and not 
against the separate estates. Mx parte 
Fairlie, I Mont. 17. Upon a petition on 
a bill of exchange accepted by the defen- 
dant, which, after examination by the 
commissioners, has been lost, such loss 
may be proved in an action by the as- 
signees on notice to dispute the debt ; for 
though the legal remedy may be gone, the 
debt remains. Pooley v. Millard, 1 Cr. 
& J. 411 ; 1 Tyr. 331. Where the act of 
bankruptcy consists of lying in prison, the 
l2 



148 



bankruptcy: proofs in actions bt assignees. 



Petitioning 

creditor's 

d«bt. 



The debt is insufficient if one of the petitioning creditors be an infant (d); 
but the husband alone may sue out a commission on a promissory note to 
the wife before coverture (e). A debt due from a partnership will support 
a separate commission (f) ; but where a debt is due to a partnership, all 
must concur in the petition (g). Where, in the case of a partnership, an 
account has been rendered and a balance struck, it will support a commis- 
sion (A). An executor may sue out a commission before probate, provided 
he obtain probate previous to the adjudication (t) ; though the probate be 
not properly stamped till after the adjudication (A). A debt due to an 
attorney for costs is sufficient, although he has not delivered a bill accord- 
ing to the statute (l). 

The late statute provides that a debt shall be sufficient to support a com- 
mission, although the time of credit had not elapsed at the time of the act 
of bankruptcy (m). 

A creditor who receives a sum of money after notice of the act of bank- 
ruptcy, sufficient, if taken in payment, to reduce his debt below the sum of 
100 ^, may still sue out a commission (n) ; and it is no objection that the 
debt has since merged in a security of a higher nature (o), or that the 
debtor has become insolvent, and included the debt in his schedule (p). 
But where a bankrupt contracts a further debt, after he leaves off trade, 
and pays money without directing the application, the payment will be set 
against the old debt, and consequently if it reduce the old debt to less than 
1002. it will not support a commission (^). A creditor who has taken in 



trading must be before the imprisonment. 
Ex parte Lynchf 1 Mont. & B. 458 ; 6 
M. & S. 295; Higgin v. Macadamy 3 Y. & 
J. 1. 

{d) Ex parte Morton^ Buck. 42. 

{e) Ex parte Barber , 1 O. & J. 1. 
JSTNettage v. HolUnvay, 1 B. & A. 318. 

(/) Ex parte Crisp, 1 Atk. 134, 

(g) Buchland v. Newsam, 1 Taunt. 
477. 

(h) Ex parte Nosey, 1 Mont Sc A. 
46. 

(i) Ex parte Puddy, Buck. 235 ; 3 
Madd. 241. 

(k) Bogers v. James, 7 Taunt. 147. 

(/) Ex parte Sutton, 11 Yes. 104. Ex 
^ptarte Howell, I Rose, 112. * 

(m) Stat 6 G. 4, c. 16, s. supra, note 
(a). A bill of exchange or promissory 
note operates as a debt from the date, and 
therefore an indorsee may petition on a bill 
or note eUUedhefore the act of bankruptcy, 
though not due till after. Bmgley v. 
Maddison, 1 Co. B. L. 20. Glaister v. 
Hewer, 7 T. R 498. Brett v. Leoett, 13 
East, 213. Ex parte TJumas, 1 Atk. 73. 
Macarty v. Barrow, 2 Str. 949; Eden, 
47 ; 2 Wils. 135. But it must appear 
tbat the indorsement to the petitioner was 
previous to the commission. Boser. Bow- 
croft, 4 Camp. 245. Ex parte Bolter, 
1 Mont & B. 412. And where a bill was 
drawn by the bankrupt in favour of a 
creditor, and he became bankrupt before 
tlie bill became due or was presented, it 
was held to be a good debt, although tfter 
the suing out of the commission the amount 



was paid by the acceptor. Ex parte Dou' 
that, 4 B. dc A. 67. See Macarty v. Bar- 
row, Str. 949. Chilton v. W{ffin, 8 Wils. 
17. Starey v. Bams, 7 East, 435. 
Abraham v. Oeorge, 11 Price, 423. 
Where the bUl drawn by the bankrupt has 
become due before the bankruptcy, proof 
must be given of presentment and notice 
of dishonour. Cooper y. Machin, 1 Bing. 
426. If two ezclumge acceptances, and 
one before the bUls become due commits 
an act of bankruptcy, the other cannot sue 
out a commission. Sarratt v. Austin, 4 
Taunt 200 ; and see Bleasby v. Crossley, 
3 Bing. 438. Neither can the acceptor of 
a bill for the accommodation of the bank- 
rupt who does not pay it till after the 
bankruptcy, for till payment he is a mere 
surety. Ex parte Holding, 1 G. & J. 97. 
Interest, where it is not expressed in the 
body of the bill, cannot be added to make 
up the amount. Ex parte Burgess, 2 
Moore, 745 ; Cameron v. Smith, 2 B. 
& A. 305 ; and see Brett v. Levett, 13 
East, 213. 

(n) Mann v. Shepherd, 6 T. R, 79. 
Buck. 283. 

(o) Ambrose v. Clendon, Ca.T. H. 267 ; 
2 Str. 1042. Or that the creditor has ob- 
tained judgment for it Bryant v. Withers, 
2 M. & S. 123. 

(p) Jellis V. Mountford, 4 B. & A. 
256; Ex parte Shuttleworth, 2 G. & J. 
68. 

(q) Meggott v. MUU, Ld. Raym. 286 ; 
Comb. 463. 



PETITIONING CREDITOR S DEBT. 



140 



debt. 



part pajment the bill of the trader on a drawee, who had no effects of the Petitioning 
trader's in his hands, may petition although he gave no notice of the dis- 5*^*!^^^*^'* 
honour of the bill (r). A judgment-creditor who has taken his debtor in 
execution cannot afterwards sue out a commission of bankrupt (s) on the 
same debt Damages for breach of promise of marriage, the verdict being 
before, but the judgment after an act of bankruptcy, will not support a 
commission (t). 

It has been decided, that a debt barred by the Statute of Limitations is 
insufficient (u), even though it has been kept alive by the suing out of pro- 
fess, and entering of continuances (x), 

A warrant of attorney given as a security against running acceptances is 
idebUum in priBsenti^ which will support a commission (y). 

The evidence to prove the debt is the same as if the action had been 
brought against the bankrupt (z). Therefore an admission of the debt by 
the bankrupt before his bankruptcy is evidence (a). So are entries in the 
bankrupt's books (^^), or declarations of the bankrupt before the bankruptcy ; 
declarations by the bankrupt as to the debt, made after the act of bank- 
niptcy, but before the commission, have been received in evidence (c). But 
it has since been decided, after a consideration of all the authorities, that 
an admission made by the bankrupt after an act of bankruptcy, though 
l^fore the commission, is not admissible to establish the petitioning credi- 
tors debt {d). An acknowledgment by a trader of a debt by bond does not 
supersede the necessity of proving it by the attesting witness (e). 

The date upon a promissory note is not even primAJade evidence to show 
that it had existence prior to the act of bankruptcy (/). If the creditor 
petition as the indorsee of a bill, the time of indorsement must be 
proved {g.) 

Proof that the bankrupt and petitioning creditor attended before the com- 
missioners, and discussed the amount of the debt, and that the commissioners 



(r) BiekerdiAe v. BoUman, 1 T. R. 

405. 

{») Cohen V. Cunningham. 8 T. R. 

125. 

(0 Ex parte Charles, 14 East, 107. 

(«) Qregcry v. Hurrilly Eden's B. L. 
«{. 2d edit 5 B. & C. 341 ; 1 Biog. 24 ; 
««ersing the judgment of the Conrt of C. 
^ 3 B. & B. 212. Bat note that the writs 
*^n% not returned, nor were the continn- 
>acM entered until after the issuing the 
^^mission. See Taylor v. HipkinSf 5 
S & A. 489. Ex parte Roffey, 2 Rose, 
^j. Where the debt arose on a joint 
r>ote made in 1825, with a party who, in 
i635, executed an assignment for the 
i>a«fit of his creditors, onder which a 
diyidend was afterwards received in re- 
spect of the note and interest; held, that 
soch piiyment by a co-contractor did not 
r«Tive the debt against the bankrupt so as 
to make it provcable. Woodward ex 
P^rte^ 3 Mont. k. Ayr. 609 : and 3 Deac. 
^ AW; Jackson v. Fairbanky 2 H. BU 

m. 

(•r) See the last note. 
(y) Miles v. Bawluns, 4 Esp. C. 194. 
(r) B. N. p. 37. Abbott v. Pluntbe, 
I>"ng. 216. Koopes v. Chapman, Peake, 10. 



(a) Brett V, Levett, 13 East, 213; 2 
H. B. 270, Dowton v. Cross, 1 Esp. C. 
168. Hoare v. Coryton, 4 Taunt 560. 
Rohson V. Kemp, 4 Esp. C. 234. 

(6) Jackson T. Irwin, 2 Camp. 50. 
Watts V. Thorpe, I Camp. 376. 

(c) Brett V. Levett, 13 Bast, 213, 
where the declaration of a bankrupt made 
after the act of bankruptcy, but before the 
commission, was adndtted, in order to 
supply proof of notice to him of the dis- 
honour of the bill of exchange ; and see 
Dowton T. Cross, 1 Esp. C. 168. But 
see WatU v. Thorpe, 1 Camp. 376 ; 2 
Camp. 40 ; Hoare v. Coryton, 4 Taunt. 
560 ; Robsan v. Kemp, 4 Esp. C. 233. 

(d) Smallcombe v. Burges, 13 Price, 
136 ; Sanderson v. Lftforest, 1 C. & P. 46. 

(e) Abbott V. Plumbe, Dong. 216. 

{/) The contnupy was held in Taylor v. 
Kinloch, 1 Starkie's C. 175, upon a mis- 
taken report of a case (cited from me- 
mory) which had been tried on the nor- 
thern circuit, "nils case was mentioned 
by Bayley, J. ; and it appears that further 
evidence was held to be necessary to prove 
the existence previous to the bankruptcy. 

(g) Rose v. Rowcroft, 2 Camp. 245. 
L 3 



150 



BANKRUPTCY : PROOFS IN ACTIONS BY ASSIGNEES. 



Supcned- 
ing evi- 
dence. 



struck off items objected to, and struck ^ liialance ia favour of the petition- 
ing creditor, is presumptive evidence, from the conduct and demeanor of 
the bankrupt (the plaintiff in the action), of abalajice to that amount; but 
it is not evidence in the nature of an adjudication! or award (A). Where the, 
creditor petitions as the assignee of a bankrupt, it is necessary to prove all 
the steps of the former bankruptcy ^t). 3ut parties to the recprd may prove 
title as assignees, by means of depositions under the statute, although they 
be not described as such on the reeord(A). • • 

Where a new petitioning credjtpr's debt has been substituted, under the 
statute 6 Geo. 4, c. 10, s. 18, it is sufficient to prove the petition to the Chan- 
cellor for the substitution, the Chancellor's order referring the sufficiency of 
the debt to the commissioner, and the finding of the eonunissioner thereon f 
it is not' neclbssary to produce the Chancellor's order confirming such 

finding (0* 

By ihe statute 2 & 3 Will. 4, c. 114, provision is made as to proof of 
the ingredients of bankruptcy in case of the death of any witness. 

Where a defendsint, whether the bankrupt himself, or any other. person, 
has done any act' by which he acknowledges the bankruptcy, the proof of 
that act, as against that person, supersedes the ' necessity of the regular 
detailed proof (m). Where an auctioneer, in a catalogue of goods for sale, 
describes them to be " the property of the bankrupt *'(n), it is primd facie 
evidence of the fact. So where a debtor to the bankrupt, for goods sold by 
the latter, stated an' account to the plaintiff as assignee, and paid him 
part (o). But a trader declared to be a bankrupt does not, by surrendering 
under it, preclude himself from disputing the legality of. the commission, 
for he is bound by law to" surrender himsiBlfl[j9) ; neither is a creditor who 
has received part pf the debt before the commission,, and proves the rest 
under it, estopped from disputing it in an action brought by the assignees 
to recover the first payment (q). The proving a debt under a commission 



{k) Jarrett ?. Leonard, 2 M. & S. 265. 

(i) Doe V. ZAttan, 4 Taunt. 741. See 
Antrean ▼. Chace, 15 East, 209. Previous 
to the Stat 6 O. 4, c. 16. 

(ft) Doe V. lAston, 4 Taunt. 741 ; Sim- 
mons V. Knight, 8 Camp. 251 ; Newport 
V. HoUings, 3 C. & P. 228 ; Rowe v. Ijmt, 
Oow. 24. 

(/) Bachelor v. Vyse, 1 M. & R. 831. 

(m) Trover by the assignees of a bank- 
rupt ; amongst other admissions, one was 
by the defendant's attorney, that a com- 
mission had issued against the party 
under which he was duly declared bank- 
rupt, and the plaintiffs chosen assignees ; 
such admission dispenses with the neces- 
sity of producing the proceedings, and no 
notice having been given to dispute any of 
the proceedbigs, the commission is con- 
clusive. Perring v. Thteker, 8 M. & P. 
557 ; Pole v. March, 1 B. & Ad. 558. In 
an action by an assignee the defendant 
consented, provided the plaintiff would 
waive holding him to bail, to admit every 
fact except as to merits, as the only ques- 
tion he wished to try was, whether he was 
liable on a certain agreement, and a com- 
mon appearance was aocordingly entered; 



having received the ^benefit, he cannot 
afterwards recede, and insist upon proof of 
the bankruptcy and title of the assignees. 
Davie v. BurUm, 4 C. & P. 166. Tlie 
defendant, on being applied to by the as- 
signees, said lie would call and pay tlie 
money, held to be sufficient. Pope v. 
Monk, 2 C. & P. 112. An affidavit, Uiat 
a party is indebted to the deponent in the 
sum of 100 L, and has become bankrupt, 
is conclusive evidence of .the bankruptcy. 
Ledbetter v. Salt, 4 Bing. 623 > 1 M,.>P. 
507. Proof by an admission is suti^clent, 
although title is expressly denied l)y tlie 
plea, Inglis v. Spence, 1 C. M. & R. 432. 
And see Afunkey. Clarke, 2 Bix^. N. C 
299, mpra, 

(n) McUtby v. Christie, 1 Esp. 340; I 
B. and A. 6^7 ; 16 East, 193. 

(o) IHckinton Tt Coward,. 1 B. & A. 
677. See Pope vi Monk, 2 q. & P. 1 12. 

(p) 9 East, 21 ; Taunt. 80. 84. 96. Bx 
parte Jonei, 11 Ves. 409. Nor do tlic 
formal words of the petition for enlarging 
the time of his surrender amount to sacli 
an admission. 

(q) Stewart v. Bickman, 1 Esp. C. 108. 
Hope V. Fletcher, Sel. N. P. 238, Col- 



ADMISSION : ASSIGNMENT. 



151 



is not eyen primd facie eyidence of the bankruptcy in an action by the 
assignees against the creditor (r). 

An assignment under the statute 6 Geo. 4, c. 16, was proved by its pro- Proof of 
duction, bearing the registrar's certificate of its haying been entered of ^^ assign- 
record according to the statute («), or by an office copy (t). It has been 
held that if the assignment be produced, it i8(u) necessary to prove the 
execution by the commissioners. 

And where the title of the assignees to the lands, tenements, and here- 
ditaments of the bankrupt came in question, the assignees, in cases where 
an actual assignment under that statute is ilecessary, proved their title by 
the conveyance from the commissioners, that is, by deed indented and 
enrolled (x) in one of the courts of record at Westminster (y). 

The deed had no relation to the bankruptcy, so as to vest such property 
in the assignees from that time, and therefore they could not recover for 
s trespass, or on a demise in ejectment anterior to the bargain and sale, 
although subsequent to the bankruptcy (z). 

Where there had been a provisional assignment it was necessary that it 
should be proved in the manner already stated (a), and the assignment by 
the provisional assignee to the second assignee was also to be proved (&). 

Under the late statute, 1 & 2 Will. 4, c. 66, it is sufiicient to prove the 
appointment of the assignees under t^e seal of the Court of Bankruptcy (c). 



lins T. Forbes, 8 T. R. 322. But see 
Walker v. Bumell, Doug. 806 ; where it 
was held that the assignees under a former 
eommissioD, after proving a debt under the 
wcond commission, could not dispute it. 

(r) RanJHn v. Homer, 16 East, 191 ; 
Watson V. Waee, 6 B. & C. 163. Vide tit 
Adxissiokb. 

(i) By the stat 6 Q. 4, c. 16, supra, 129. 

(0 Ibid. 

(u) GomersaU ▼. Serle, 2 Y. & J. 6. But 
lord Tenterden in TueJter ▼. Barrow, sitt. 
after Mich. 1827, held the contrary ; and 
Ke the 97 th sect, which makes office 
copies evidence, and imposes a restraint 
00 the production of the originals. 

(x) The indorsement of enrolment, px 
an examined copy, is conclusive evidence 
of enrolment. See Vol. I. and Index, tit. 
Baboaik andSalb.— Bnrolmbnt. B» 
r. Hopper, 3 Price, 496 ; 1 Doug. 66. 

iy) 6 Geo. 4, c. 16, s. 64. The clause 
excepts copyhold and customary land ; it 
also directs the assignment and registrar 
tion of colonial lands, and of all deeds, 
papers, and writings respecting the same. 

(z) Doe V. Mitchell, 3 M. & S. 466. 
See miwH v. Demby, 12 Mod. 8; Perry 
V. Botces, 1 Yentr. 260. 

(a) Supra 161. See 2 Christian's B. L. 
448. If the action be brought by the pro- 
visional assignee, who sues out a latitat, it 
u no defence under the general issue that 
other assignees were appointed between 
the issuing the writ and the declaration. 
J*agey, Bauer, 4 B. & A. 846. The as- 
signment was directed to be made by the 
Ifovisional aMigoees to the creditors' as- 
signees, an assignment by the former to 



the commissioners, and by them to the 
creditors' assignees, was held to be insuf* 
flcient MouU v. Massep, 1 B. & Ad. 636. 

(b) By the 46th section of the stat. 6 
G. 4, c. 16, s. 46, provisional assignees 
may be removed at the meeting of creditors 
for tlie choice of assignees, if they think 
fit, and such assignees so appointed shall 
deliver up and assign all the estate of the 
bankrupt come to their possession ; and all 
estate of the bankrupt so delivered up and 
assigned shall be as effectually and legaUy 
vested in the assignees so chosen, as if the 
first assignment had been made to them. 

(c) By that stat., s. 26, when any per- 
son shall have been adjudged a bankrupt, 
all his personal estate and efiects, present 
and future, which by the laws now in force 
may be assigned by commissioners acting 
in the execution of a commission against 
such bankrupt, shall become absolutely 
vested in and transferred to the assignee 
or assignees for the time being, by v&tue 
of their appointment, without any deed of 
assignment for that purpose. And as often 
as any such assignee shall die or be law- 
fully removed, and a new assignee duly 
appointed, all such personal estate as was 
then vested in such deceased or removed 
assignee, shall, by virtue of such appoint- 
ment, vest in the new assignee, either 
alone or jointly with the existing assignee, 
as the case may require. 

By sec. 26, similar provision is made for 
the vesting of the real estate. 

By sec. 27, where a conveyance of the 
property of a bankrupt would require to 
be registered, the certificate of the ap- 
pointment of the assignee shall be regis- 
tered. 



152 



BANKRUPTCY : PROOFS IN ACTIONS BY ASSIC^NEES. 



ETidence When the assignees have proved their title to sue in that character, they 

by asalK- proceed to prove the cause hy action. In some instances, the proof and 
ticolar ^^^'^ grounds of defence are (cf)jast the same as if the action had heen brought 
actions. 



By sec. 29, it is enacted that a certifi^ 
cate of the appointment of such assignees, 
purporting to be under the seal of the 
court of bankruptcy, shall be received in 
evidence without further proof. The stat. 
6 G. 4, c. IG, s. 98, exempts all commis- 
sions, conveyances and instruments, re- 
lating to the estates of bankrupts, from 
stamp duty, from Bept 1, 1825. 

(d) The assignees of A. & B, cannot re- 
cover where A, k. B,, by reason of the 
fraud of A.^ could not have recovered had 
not the baiikmptcy taken place. Jona v. 
Yates, 9 B. & G. 5S2 ; and see Kymer v. 
Zarkmy 5 Bing. 71. An admission by a 
defendant before comn^ssioners of baiik- 
rupt, that he had received a sum of money 
on account of the bankmpt, will not sup- 
port a count on an account stated with the 
assignees, for he does not admit that the 
money remains in his hands. Tticlier v. 
Barrato, 7 B. & C. 628. The petitioning 
creditor's debt accrued on the 4th April, 
previous to which, as well as subsequently, 
acts of bankruptcy had been committed, 
and goods had been sold in three parcels, 
two before the 4th of April, and the third 
on the 9th; held, in trover by the as- 
signees, that they could only recover in 
cases where the bankrupt himself might 
impeach the transaction, unless the deli- 
very were subsequent to the act of bank- 
ruptcy after the petitioning creditor's debt 
accrued, and that they were entitled only 
to recover in respect of the third parcel. 
Ward V. Clarke, 1 M. & M. 497. The 
defendant claiming a lien on the deeds 
of a bankrupt, had extorted a mortgage 
of other premises belonging to the bank- 
rupt's brother, as a consideration forgiving 
them up; held, that the assignees could 
not maintain any action against the de- 
fendant, as for a payment extorted from 
the bazikrupt. Noble v. Kersey, 4 C. & 
P. 90. By the contract of sale of several 
pipes of wine lying in a bonded warehouse, 
the vendee was boond to pay the duty, 
and he was only entitled to receive them 
by the delivery order, on payment thereof; 
the obligees to the Crown were called upon 
to pay &e duty, and were repaid by the 
vendors; held, that the assignees of the 
vendee were precluded from demanding the 
wine before they had repaid those sums, 
and that the fact of the bankrupt having 
been charged with the warehouse rent did 
not make the possession of the warehouse- 
man the possession of the bankrupt Wines 
V. Hassall, 9 B. & C. 372. A creditor, hi 
order to relieve the goods of a party be- 
come bankrupt, taken in execution, paid 
the amount directed to be levied to the 
sheriff, with notice of a docket having been 
struck, directing him to retain the money 
in his hands ; the assignees afterwards re- 



paid him the amount, and sued the sheriiT 
for money had and received ; held, that as 
the assignees did not exist at the time, and 
as the money paid was not their money, 
they could not maintain the action. Semble 
the rule omnis ratihabUio, &c. cannot be 
carried so far as to give effect to acts 
done when the ratifying parties did not 
exist. Bueker v. Booth, 1 M. & M. 518. 
Where bankers were, by the terms agreed 
upon, to discount only such indorsed bills 
rendtted to them as should be necessary to 
cover acceptances becoming due, held that 
they could not, after having dishonoured 
acceptances, discount a bill which had been 
so remitted, as they had no right to dis- 
count it without also executing the trust 
reposed in them, and that their assignees 
could not retain such bill against the peti- 
tioners. JEx parte Frere, 1 Mont. & M. 269. 
The defendant in April, upon an advance 
of money, received the title-deeds of an 
estate about to be purchased by the mort- 
gagor, untainted with any nsiuious consi* 
deration, and previous to the conveyance 
of the estate insisted upon the mortgagor 
purchasing goods at a price above their 
value as a bonus, or otherwise he would 
not continue the mortgage ; held, that the 
original possession of tiie title-deeds being 
good, gave him a right to the estate when- 
ever it should be conveyed to the mort- 
gagor, and that tlie assignees of the latter 
could not maintain trover, even for the lat- 
ter conveyance. Wood v. Orimtoood, 10 
B. & C. 679. Assignees do not claim in 
strictness under ihe bankrupt, but ad- 
versely to him, and by operation of law. 
Gould V. Shayer, 6 Bbg. 738. See 8 B. 
& C. 448. App. Vol. II. tit Appropria- 
tion. Where the bankmpt became tenant 
to the defendant under an agreement for 
a lease, and was distrained on by the su- 
perior landlord in consequence of the de- 
fendant's neglect to satisfy the rent, held 
that the assignees were entitled to sue in 
an action on the case for damages sus- 
tained by the bankrupt in consequence of 
such distress, as upon a breach of an im- 
plied agreement for quiet ei\joyment ; and 
that they might sue in case or assumpsit. 
Hancock v. Cc^ffkfn, 8 Bhig. 358. Where 
the bankrupt had borrowed of a third 
party a carriage, and lent it to the defen- 
dant, by whom it was broken and da- 
maged, and the owner proved the amount 
of the damage under die bankruptcy, al- 
though no dividend was ever paid, held 
that the assignees were entitled to main- 
tain the action for damages, but only to 
recover nominal damages. Porter v. Var' 
ley, 9 Bing. 93. Where one of the de- 
fendants, having become possessed of shares 
in a mining company, by the regulations 
of which it was necessary for him to sign 



ADMISSION : ASSIGNMENT. 



153 



by the trader himself (e) ; and there is nothing in the evidence which is 
peculiar to bankruptcy^ except, indeed, that l^e bankrupt himself, after 
having obtained his certificate and released the assignees, is a competent 
witness (y^. 

Where trover is brought by the assignees on a conversion after the bank- Trover, 
ruptcy, though before the commission, it is unnecessary to prove an actual 
demand, since the property vests in the assignees by relation, so as to avoid 
all mesne acts {g). 

fiut by the bankruptcy an immediate and premature end is put to all 
transactions between the bankrupt and those with whom he dealt, and a 
new interest arises on the part of the creditors, by which the rights of the 
parties are much varied. 

Evidence on the part of the assignees, peculiar to cases of bankruptcy, is 
frequently necessary. 

1st. To show that the trader, at the time of the bankruptcy, was in pos- 
session, &c. as reputed owner, 

2dly. That the right to particular property vested in the bankrupt by 
delivery, &c., so as to pass to his assignees. 

ddly. To show the right of the assignees in disaffirmance of some act of 
disposition by the bankrupt. 

1. That the bankrupt, at the time of the bankruptcy, had the possession, 
&c. of the goods as reputed owner. 

By the statute 6 Geo. 4, c. 16, s. 72, it is enacted, that if any bankrupt (A), 



Evidence 
peculiar to 
bank- 
ruptcy. 



Reputed 
ownership. 



the deed of association and receiye a certi- 
ficate before a certain day ; and he residing 
in the country, directed his son, the other 
defendant, to sign the deed in his own 
name and receive the certificate, which he 
accordingly did, and after his father's bank- 
ruptcy sold them and paid over the whole 
proceeds to his father, before any demand 
by the assignees; held, tliat as after the 
execution of the deed the father never had 
any legal property in the shares, and if the 
assignees had obtained possession of the 
certificate they could only have compelled 
an assignment by the son in equity, they 
coald not maintain trover for tbe certifl< 

* 

cate. Dawson v. jRishicorth, 1 B. & Ad. 
574. The plaintiffs put up the bankrupt's 
goods to sale, and amongst them, some 
stereotype plates, which were at the time 
in the defendant's hands, the defendant 
claiming a lien thereon, were included by 
him in the sale, but the assignees refused 
to authorize it; they however afterwards 
signed the catalogue, to exempt them from 
the auction duty : held, tliat this was not 
to be deemed an adoption of the sale, so as 
to defeat their right to maintain trover 
against the defendant for the goods ; held 
also, that in respect of a modem trade, like 
that of stereotype printing, there could be 
no general usage to support the claim of a 
general lien on the plates, not being manu- 
fectured by him, but only sent to print 
from. BUaden v. Hancock^ 1 M. & M. 
465. Money had and received to the 
use of the assignees, where the proper 
form of action ; see Simpson v. Sykes, 
6 M. & S^ 295u Assignees under the 



6 Geo. 4, c. 16, may maintain an action for 
unliquidated damages which have accrued 
before the bankruptcy, by non-perform- 
ance of a contract. Wright v. Fairfield 
and others^ 2 B. & Ad. 727. Where bills 
were delivered to the defendant by a bank- 
rupt, with the view of giving a fraudulent 
preference, and the amount was received 
after the bankruptcy, held that the as- 
signees could not recover in trover without 
proving a previous demand and refusal; 
the receipt of the money was not in itself 
a conversion. Jones y. Fort, 9 B. ic Cr.764. 

{e) They may adopt and rely upon a 
contract made by the bankrupt subse- 
quentiy to his bankruptcy. Butler v. 
Carver and others, 2 Starkie's C. 434. 
The assignees may either enforce or reject 
such a contract at pleasure. If a bankrupt 
after his bankruptcy sell goods, the as- 
signees may bring either trover or as^ 
sumpnt for the value. Hussey v. Feddally 
8 Salk. 50 ; Holt, 95 ; 12 Mod. 324. 

(/) Vide infray 192. 

{g) KiggUl v. Player, 1 Salk. Ill; 
B. N. P. 41 ; 2 Starkie's C. 306. Before 
the late statute, where the assignees sought 
to impeach a delivery by the bankrupt, as 
made in contemplation of bankruptcy, it 
was necessary to prove an actual demand. 
Nixon y, JenJdns, 2 H. B. 135; but as 
such a delivery is now void, being an act 
of bankruptcy, a demand seems now to be 
unnecessary. 

(A) The statute does not apply to pro- 
perty which comes into the bcmkrupf s 
possession after the act of bankruptcy. 
Lyon V. Weldon, 2 BUigh. 334. 



154 



BANKRUPTCY : PROOFS IN ACTIONS BT ASSIGNEES. 



Reputed at the thne(i) he becomes bankrupt, shall, by the consent and permis- 

owncrehip, gfoQ of the true owner (j) thereof, have in his possession (A), order, or 

disposition (/), any goods * of chattels (tn), wher^f he was reputed 



(i) Qoods which have snbBequently come 
into his possession are not within the sta^ 
tute. Lyon^v, W^ldfln, 2 Bing. 334. So 
if taken ont of the banicrupt's possession 
hffore the act of hankraptcy. Jones y. 
nyer, 15 SS8t.'21. Aitouin ▼. WlUiaftity 
M. & H. 72. It has been held at If isi Pfins, 
that a removal on the same day with the 
act of bankruptcy wonld not take the case 
ont of the statute. Arbouin y, Williams, 
72, secL qu. It has be^n held that a de- 
mand of the goods before bankruptcy was 
sufficient. Smith y. Topping, 6 B. & Ad. 
674. 

(J) The consent of a person who was 
permitted by the tme owner to deal with 
the goods as his own is not sufficient. 
Frasery. Swansea Canal Company, 1 Ad. 
& EU. 355. 

(k) On a loan, the dock tickets of tallow 
in the docks were deposited by the bor- 
rower; these had been taken o^riginally not 
in his own name, but in that of another, 
as a trustee (for secresy in the trade), 
whose name was. indorsed t>n the tickets 
without his knowledge or interference, and 
the goods remained in his naxAe'at the' 
docks; held, upon his becoming bankrupt,' 
that never having had possession of the 
tickets, without the production of which * 
the tallow would not' have been delivered' 
to him or to his order, they were not in' 
his reputed ownership within the statute. 
Bidout V. Alder, 1 Mont. 103. After the 
death of one partner, the survivors accepted, 
by way of a comprbmfse, securities for a ' 
debt due to -the originifl firm, and after- 
wards became bankrupt; held, that such' 
securities were proper^ in their order and ' 
disposition, within the 6 Geo. 4, c.l6, s. 72, 
for the benefit of the creditors of the sur- ' 
viving partners, but that goods purchased 
l^ the original firm jointly with other firms, 
and remaining in the possession of the 
latter, were not within the statute. So of 
goods shipped in the life-time of the part- 
ner, but returned after his death; and of 
a- bill of lading sent to the holder of a bill 
ndt paid, and in his hands at the time 
of the bankruptey. So goods sent by a 
debtor to the partnership after tlie death, 
of the partner, and at the time of the bank- 
ruptey in the possession of an agent of the 
partnership, who claimed a lien Uiereon for 
freight. So a plantation estate mortgaged 
to the partnership, but not conveyed until 
after the death of the partner, and at the 
time of the bankruptcy in the possession 
of the survivors ; except as between the 
partners, the real estate of a partnership 
retains its original character. Ex parte 
Taylor, 1 Mont. 240. Upon a party being 
admitted as a dormant partner, it was 
agreed that the stock, debts. &c. should 



form the new partnership stock, that he 
should receive a certain percentage on his 
. capital, but shoi^d. not i&feeriSBre, and the 
firm was carried on as before ; npon their 
bankruptey, held that the creditors of the 
old 'firm y^isre entitled to havis the stock, 
&c. considdrod as wltUHi the order and 
disposition of the two ordinal partnen^ to 
be administered as their separate estate, 
although some of the creditors had notice 
of tho^ ck>tpU|nt partner, JSx parte Jen^ 
nings, 1 Mont. 45. 

(Z) As to the efiect of these words, see 
'btflolr. 

(m) Under the statute 21 J. 1, c 19, 
book-idebts, bills of exchange, and choses 
in action, are within this description. 
1 Wilson, 200. RyaU v. RoUe, 1 Ves. 
348 ; 1. Atk. 165. Jlomblower v. Protui, 
5 B. & A. 327. The assignee of a simple 
contract debt is deemed to have the order 
and disposition of the debt, with the con- 
sent of tlie tme owner, until the debtor has 
notice of the assignment. Burke v. Zee, 

1 A. & E. 864. So a fVeight assigned, and 
notice having been given to the party who 
is to pay it, is no longer in the order and 
disposition of the assignor. Douglas v. 
RusseU, 4 Shn. 524; 1 M. & K. 488. An 
Act made canal sliares personal property, 
and transmissible according to printed 
forms in the form of a conveyance ; held, per 
y. C. Sliadwell, that they were not to be 
cbnsidered as goods and chattels generally, 
but merely for the purposes mentioned in 
the Act, viz. to representatives, and were 
nbt within the clause of reputed ownership. 
Bht the judgment was reversed on appeid. 
JBx parte iMMOMter Can. Co., 1 Mont. 
1 16. And see Vauxhall Br. Co., 1 Gl. & 
J. 101. kelson V. London Assurance Co., 

2 S. & S. 282. Shares in a newspaper, 
Longman v. Tripp, 2 B. & R. 67. The 
bankrupt, previous to his bankruptey, 
effected poifcles of insurance on his life, 
which he assigned, and delivered over the 
policies; the assignee gave no notice of 
t&e assignment to the office until after the 
Umkruptey; It was held, tliat the policies 
remained in the order and disposition of 
tHe bankrupt, and passed to his assignees. 
Ex parte Colvill, 1 Mont 1 10. 

The wife being possessed of gas shares, 
the bankrupt plmlges the certificates as a 
security for advances; no notice having 
been given to the company until after 
the act of bankruptey, the shares are 
within his order and disposition. Spencer, 
ex parte, 3 Mont. & Ayr. 007. The bank- 
rupt had deposited with A.B.ta a security 
for a loan, shares in a foreign mining 
company, accompanied with an agreement 
to complete the transaction when required, 
and he commnnicated such deposit to one 



BBPUTBD 0WNBB8H1P. 



165 



owner(n)f ox whereof he had taken upon him the sale, alteration, or disposi- Repnteii 
tion aa owner, the commisflioners shall haye power to sell and dispose of the ^^'^"^^f- 
same for the benefit of the creditors under the commisBion ; provided, that 



of the directors, who cgmmnnUmted H to 
the board befo^ the aot oftbankraptey 
committed; A, B* afterwards sealed up 
the shares, iknd entrusted them to the bank- 
rapt to keep in his inm safe for b^ter 
castody, where they remained nntU thiee 
weeks before the bankraptcy, when they 
were delivered liaok ; held, not to be within 
the order and disposition of the bankrupt 
at the time of his bankruptcy; temble, 
sliares of a. company, possessing landfr. 
abroad for the purposes of trade, are not 
to be deemed real property. Ex parte 
Bichardson, S Deac. 496 ; and 1 Mont. 8c 
Ch. 43. Where railway shares were depo- 
sited by the bankmpfs partner with 
bankers, as security Tor acceptances by a 
third party, and for whom the bankers 
liad discounted thdn, and who, being 
managing director of Xhe company, was 
informed at the time of renewm^ the bill 
that the certificates of the shares bad been 
so deposited; held, that as the bankrupt 
had parted with the possession of them, 
and that, as transfer could be made with- 
out the authority of the party for whose 
use they had been so deposited, the bank« 
rupt was not to be deemed the reputed 
owner, and the shares were not in his order 
and disposition. Exparte Harriton,^Deac. 
185 ; and 3 Mont & Ayr. 596. Where the 
same party was secretary to two offices, with 
one of which shares were deposited ; held 
not sufficient notice of the transfer of the 
bankrupt's interest to prevent the claim 
of reputed ownership. Bignoldy ex parte^ 
3 Dcac. 151 ; and 3 Mont. & Ayr. 477. 
Where certificates of shares of a foreign 
bank were transmitted to the bankrupts 
on a contract for joint purchase of them, 
and clothed with a trust to apply the 
proceeds, when disposed of, to retire bills 
drawn for the purchase ; held, that they 
were not within the order and disposition 
as the property of the banlirupt, and did 
not therefore pass to the assignees. Brotcn, 
exparte, 3 Deac. 91 ; 3 Mont. & Ayr. 472. 
Where on a joint commission against Q, 
and X., the latter obtained his certificate, 
and in consideration of undertaking to pay 
his creditors in full within a certain time, 
obtained a deed poll to enable him to 
supersede, and they also executed a power 
of attorney to enable F. to receive the 
dividends for the use of X., and do what 
was requisite to enable L, to supersede. 
The consideration was never performed, 
and afterwards a second commission issued . 
against X.; held, that the creditors, and 
not F,y were entitled to receive the diyi- 
dends, and that the reputed ownership and 
order and disposition of them was not in 
the bankrupt. Smithers, ex parte, 3 Mont 
^ Ayr. 603. So are mortgages and S'lles 



upon condition of goods and chattels aa 
well as. absolute sales. Hwnbhwer ▼. 
Proudy 3 B. & A. 327. And so is a mort- 
gage by pne partner to another of his moiety 
of his stock in trade, if the partner so mort- 
gaging remain in possession as the visible 
proprietor of the moiety. Ibid. A,, the 
owner of lease of house and fixtures, mort- 
gages both and becomes baakiQipt; the fix- 
tures do not pass to assignees as goods 
and> chattels. Boydell v. M^Mvchael^ 1 
C. M. & R. 77. All goods and chattels 
are within the statute. Ships ex parte 
Bum, 1 J. & W. 378. Stephens v. Sale^ 
cited 1 Yes. 362. Although the decisions 
are not uniform on the subject, the general 
rule seems to be that fixtures are not 
within the words goods and chattels. In 
the cases of Coambt v. Beaumont, Clarke 
T. Croumshato, 3 B. & Ad. S04, Parke, J. 
intimated that the distinction with respect 
to fixtures as between landlord and tenant, 
did not prevail under the statute. In 
Trappsy, Harter, the Court of Exchequer 
held that fixtures might pass to the as- 
signees as personal property. Tliis seems, 
however, to have been overruled by the 
case of Boydell v. APMlchael, 1 C. M. 
& R. 177, and is opposed to the current 
of authorities, in which it has been held 
that steam-engines, boilers (Hubbard v. 
Bagihatc, 4 Simons, 326), vats, stills, and 
utensils {Home v. Baker, 9 East, 216; 
Clarke v. Crownthaw, 3 B. & Ad. 804), 
if fixed to the freehold, do not pass to the 
assignees. And see ex parte Lloyd, 1 
Mont & Ayr. 494. Ex parte Belcher, 2 
Mont. & Ayr. 160. Ex parte Wilson, 
Ibid, 60. . In Hubbard v. Bagshaw, the 
plate of a steam-engine (which formed no 
part of the working apparatus), was fixed 
to the freehold ; every other part was se- 
cured by bolts and screws, and might be 
removed without injury to the buUding; 
but it was held that the steam-engine did 
not pass. 

(ji) As to reputed ownership, see the 
cases cited below. Where household fur- 
niture and stock, in pursuance of an agree- 
ment of sale of a house and furniture, were 
left in the possession of the seller three 
nlonths after the sale, it was held that they 
did not pass to his assignees, the sale being , 
notorious in the neighbourhood. Muller 
V. Moss, 1 M. & S. 336. Where on the 
contrary a house was let on a lease con- 
taining a covenant for its determination on 
the lessee's committing an act of bank- 
ruptcy, and by another deed the furniture 
was demised subject to a similar coveuaat, 
and the jury found that the lessee was the 
repnted owner of the furniture, it was hold 
that it passed to his assignees. Hicken- 
botham v. Groves, 2 C. & P. 402. 



156 



BANKRUPTCY : PROOFS IM ACTIONS BY ASSIGNEES. 



Relented 
owaenhip. 



nothing herein contained shall invalidate or affect any transfer or assignment 
of any ship or yessel, or any share thereof, made cls a security for any deht 
or debts, either by way of mortgage or assignment, duly registered according 
to the proyisions of an Act of Parliament made in the fourth year of his 
present Majesty, intituled, An Act for the Begigtering of Vessels {o). 

The obvious intention of this provision (p) is to prevent a trader from 
acquiring a false and delusive credit to the deception of others, by an 
apparent property in goods which do not belong to him. 

Whether particular property was in the possession of the bankrupt at the 
time of his bankruptcy, as the reputed oumer, is usually a question of fact 
under the particular circumstances of the case(^). 



(o) See the stat. 4 Geo. 4, c. 41. If a 
vendee of a ship neglect to take possession 
after the arrival in an English port, and 
notice thereof, the property passes to the 
assignees. Mair v. Olennie, 4 M. & S. 
240. RicJiardson v. Campbell, 5 B. & A. 
106. An alteration in the register is no 
notice to the world. Kirhley v. Hodgson, 
1 B. & G. 688. And it gives no validity 
to a transfer otherwise invalid. Robinson 
V. Macdannell, 5 M. & S. 236 ; and Monk- 
hotue V. Hay, 4 Moore, 540 ; and Hay v. 
Fairbaim, 2 B. & A. 103. Bat if a vendee 
of ship registered in his name take pot- 
session before an act of bankmptcy com- 
mitted by the vendor, the property is in 
the vendee. Robinson v. Macdonnell, 2 

B. Sc A. 134. 

(p) The langaage is nearly the same with 
that of the stat. 21 Geo. 1, c. 10, s. 11. 

{q) In Walker v. Bumell, Doag. 303, 
Lord Mansfield, C. J. left it as a question 
for the jury, whether Biner, the bankrupt, 
was in possession at the time of his bank- 
ruptcy. And per BuUer, J. questions of 
this kind have more of fiict in them than 
of law. The sort of possession, disposition, 
&c. are facts to be proved, and are for the 
consideration of the jury. Ibid. And Eyre, 

C. J. in Lingham v. Biggs, 1 B. & P. 82, 
approved of Mr. J. BiUler's observation, 
and he added, that where once it is asceiv 
tained whether the bankrupt was the re- 
puted otoner or not, there is little difficulty 
in deciding. From that reputed otoner^ 
ship fklse credit arises, from that false 
credit arises the mischief, and to that mis- 
chief the remedy of the statnte applies. 
But it may be a question of law. A tenant 
had the possession of machinery and im- 
plements for working a colliery, under a 
demise of the colliery, and had merely a 
qualified property in them, subject to the 
terms of tiie lease. And altliough the jury 
found that the tenant at the time of his 
bankruptcy was the reputed owner, and 
found for the plaintiffs (the assignees), the 
court directed a verdict to be entered for 
the defendant, on the ground that in point 
of law the tenant never had a possession, 
order, and disposition, &c. within the stat. 
21 J. 1, c. 10. Note, that the implements 
and machinery were to be valued when the 
lessee yielded up the premises, and the dif- 



ference between that and a former valua- 
tion to be paid by the landlord and tenant, 
according as the second valuation was 
greater or less than the first The lease 
was determined by forfeitures, and it was 
held that the landlord was entitled to the 
whole without valuation. Storer v. Hunter^ 
3 B. & C. 468. Note, that this case was 
distinguished from those of Lingard v. 
Messiter, 1 B. & G. 308, and Kirkley v. 
Hodgson, 1 B. & C. 588; on the ground 
that in those cases the bankrupt had at 
one time been the owner of the property. 
In the above case of Walker v. Bumell, 
Buller, J. observes : possession of goods for 
sale in a shop may be within the statute, 
but the possession of furniture in a house 
is no more evidence of a right to that fur- 
niture than of a right to the house.— Where 
goods are sold, but remain in the posses- 
sion of the vendor, they will pass to his 
assignees on his bankruptcy, unless some- 
thing be done to render the change noto^ 
rious to the public at large. In Knowles 
V. Horstfall, 6 B. & A. 134, where A,, a 
spirit-merchant, sold to B, several casks of 
brandy, some of which were in his own 
vaults, and others in the vaults of a regular 
warehouse-keeper, and the casks were to 
remain there till the vendee could conve- 
niently remove them; and A, became bank- 
rupt before any removal or notice to the 
warehouse-keeper; it was held that they 
passed to the assignees. Although it was 
notorious the parties carried on the wine 
trade at the place where the parties re- 
sided, that such sale had taken place, and 
although the purchaser had put a mark 
upon &em; secus, where the goods were 
left in the possession of the bankrupt only 
till they could be conveniently shipped, 
1 Atk. 185. In Thackwaite v. Cock, 3 
Taunt 487, it vras held, that hops which 
were sold, but remained in the vendor's 
possession till his bankruptcy, the vendee 
paying rent, passed to the assignees, al- 
though it was according to the custom of 
the particular trade that they should so 
remidn. But where wine sold by the bank- 
rupt was, for the purchaser's convenience, 
bottled and deposited in the bankrupt's 
cellar, set apart in a particular bm marked 
with the purchaser's seal, and entered in the 
bankrupt's books as belonging to the pur- 



REPUTED OWNBRBHIP. 



167 



Where the assignees bring the action to recover the amount of the goods Reputed 
which the defendant claims as his own property, either by virtue of a sale ownership, 
to him by the bankrupt, or as being originally his own, it is incumbent on 
the assignees to prove that the goods remained in the possession of the 
bankrupt, he being still a trader (r) up to the time of the bankruptcy («), 
and that he was the reputed owner^ and appeared to have the order and dis- 
position of the goods. The mere possession of goods in a shop, in the 
ordinary course of business, at the time of the act of bankruptcy, is primA 
fade evidence for the assignees under the statute (t). Where, according to 
the course and usage of dealing, in respect of a particular subject of occu- 
pation (e. g. a colliery), articles used may either be the property of the 
owner or lessee ] mere possession is not, it seems, a sufficient foundation for 
presuming ownership in the occupier (u); in such a case, possession ought 
not to raise such an inference in the mind of any cautious person. And where 
the bankrupt has been once proved to be the owner of goods, and to be in 
possession at the time of the bankruptcy, the amu of proving a change of pos- 
session lies on the party who claims against the assignees {x). 

Proof that the former owner of a ship had the possession, order, and dis- 
position of the vessel, up to the time of his bankruptcy, was held to be suf- 
ficient to vest the property in the assignees, although he had assigned his 
interest, and the transfer had been duly registered, according to the register 
acts (y). So (before the late statute) in the case of a joint interest in a ship, 
mortgaged by the bankrupt, where he continued in the management of her^ 
together with the part-owners, and acted as a visible part-owner till he 
became a bankrupt (z). 

Where the property consists of household furniture, stock in trade, or 
utensils in trade, it is sufficient that the bankrupt remained in possession of 
the house, and carried on the trade as the apparent owner of the stock and 
utensils, up to the time of the bankruptcy. As, where a creditor took the 
household furniture, and the articles belonging to a coffee-house, under an 
execution against B., and then let them to jB., who covenanted not to 
remove them withont the owner's consent, and permitted B> to remain in 



chaser, it was held not to be within the 
statute. JEx parte Marrable, 1 Q. & J. 402. 
Carruthers v. Payne, 6 Bing. 270. Where 
goods in the poesession of an ageot or com- 
pany are transferable by means of war- 
rants, a transfer by delivery of the war- 
rant usually amounts to a complete transfer 
of the possession. See LueoB v. JDorrien, 
1 Moore, 29 ; and tn/V-a, tit. Vendor and 
Vbndbb. So as to wines in the London 
Docks. JEx parte Bavenporty M. & B. 
165. As to machinery and utensils an- 
nexed to the freehold, see further Trappea 
V. iarar/er, 3 Tyr. 603. Boydell y, M*Mir 
chael, 1 C. M. & R. 77. Where a trader 
gave a creditor an order to receive money 
in the hands of A,, and directed A. to 
transmit it to the creditor, and whilst it 
was in the hands of the carrier the trader 
became bankrupt, Ld. Ellenborough held 
that the case was within the statute. 
Hervey v. Liddiard, 1 Starkie's C. 123. 
The possession of a pawnee is not the pos^ 
»e9»ion of a bankrupt pawner. Greening v. 
Clarke, 4 B. & C. 316. 



(r) Oordon v. I^aet India Company , 7 
T. R. 228. 

(«) 15 East, 21. 

(t) See the observation of Bnller, J. In 
Walker v. Bumell, Doug. 303, secus, 
{semble,) as to the possession of furniture 
in a house. Ibid, 

(u) Per Abbott, G. J. in St<me v. Hunter ^ 
3 B. & C. 376. And see Thackwaite v. 
Cocky 3 Taunt 487. 

{x) Lingard v. Meetiter, 1 B. A: C. 
306. Clark v. Crotmuhaw, 3 B. & Ad. 
804. 

(y) Hay v. Fairbaim, 2 B. & A. 134. 
Bobinton v. M^Bonnell, 2 B. & A. 134. 

(z) Hall V. Gumey, Co. B. L. 6th 
edit. 342. See the stet 6 Geo. 2, c. 5, 
s. 72. It seems to be now settled that 
the share of a dormant partner goes to 
the assignees. Bx parte Bnderby, 2 
B. & C. 388. And see Bx parte Byster, 
2 Rose, 256. Contra, Coldwell v. Ore- 
gory, 1 Price, 110. So a ship registered 



158 



bankruptcy: proofs in actions by assignees. 



Reputed possesrion as before (a). Alter the seizure of B/s 6tock in trade upon 9^fi.fa. 
ownership, j^y ^^ trader's shopmen, under a warrant on a Saturday, they carried away 
the key, but opened the shop again on Monday ihorning, and although B. 
did not interfere, business was carried on, ftpparently, as usud, and ih the 
evening of the Monday B. committed an act of banlrhptcy ; it was held 
that the goods passed to the assignees, notwithstanding the l^x^chtion, since 
the possession jof the servants iras the possession of the m^t€r(&). 

So where B. a brewer, being in partnership with il., mortgaged a moiety 
of the stock in trade, utensils, debts, &c. to C. in trust for if., but continued 
in possession, and acted as il.'s partner till he, J9., became bankrupt ; for 
being in possession, and acting as partner,' receiring debts, &c. B, was as 
much the reputed owner as A, (c). S^ where A. sold a dyer's plant-to' B,, and 
at the end of a year B, covenanted to delivei' u^ thfe' plant, in consideration 
ef A.'s oancelling BJs unpaid notes, which he had given to ^. in payment 
for the plant ;, and it was stipulated that A, should I^t the plant to B. for 
a term, with a proviso that B. should deliver up the plant, and that A, might 
take possession of it upon the fiailure in payment of rent. There was a me- 
morandum that B, had given possessibn" to A. by the delivery of a single 
winch ; JB. remained in possession! till his bahkrupticy, and it was held that 
the property vested in the assignees (<£). 

A; a trader and an officer in the East India Company's service, assigned 
his privilege of shipping goods to England to B!, bilt (such an assignment 
being prohibited), tim goods were shipped, entered, warehoused, and sold 
in ^.'s name, and the proceeds were ctfrHed to his account ; but before he 
received them from the company he became a bankrupt ; it was held that 
the aesignees wei^ entitled to such proceeds («). So where A.yH distiller, 
leased to B. (his former partner,) and C. a distill-house, with the stills, vats 
and utensils, which had before been used by A, arid' J?., and after this B. 
and C carried on business as partners, in pcftsession of the preihises and 
utensils, till they became bankrupt; the c6uxH; were of opinion that the 
bankrupts had, at the time of the bankruptcy, acquired the reputed owner- 
ship of the vats and utensils (which were moveable), and had thereby 
acquired the real ownership for their creditors (f). 

Where 4. who kcrpt a public-house, asserted thai; she was married to P., 
and entered his name at the Excise Office, with a note in the margin 



in the name of one owner, but suffered to 
be in the possession, order, and disposition 
of the partnership, passes to the assignees. 
Bx parte Bum, 1 J. & W. 378. ' 

(a) Lingham v. Biggs, 1 B. & P. 82. 
Where a landlord distrained upon t£te goods 
of his tenant, which he took at the ap-' 
praisement, and left the goods in the pos- 
session of the wife of the tenant, who* 
shortly after became bankrupt, after which 
the landlord again distrained as for the 
former rent; held, that the goods were in 
the order and disposition of the bankrupt, 
and passed to the assignees) and that the 
rent haring been satisfied, the goods could 
not be again distrained. '£^ parte Shuttle- 
worthy 1 D. & Ch. 233. And »ee Tmumint 
V. Hartop, Holt's C. 836. Bifher v. Ha9- 
ler, 4 Bing. 479. See Longman v. Tripp, 
2 N. R. 67, as to the publisher's right to a 
newspaper. 



• (b) Per Ld. BUenbdrough, C. J. Jackson 
V. Irwin, 2 CaUip. 4^. Aild see Home ▼. 
Baker, East, 216; Thakkwaite v. Cock, 
3 Taunt. 487. But see Coldwell y. Ore- 
gory, 1 Price, 119. So, in iTatesv.Potcell, 
cor, Abbott, L. C. J. sittings after T. T. 
1^23, the goods had been taken in execu* 
tion twelve months before at the suit of the 
trader's bit^ther; but the sheriff remained 
in possession one day only, and then the 
bankrupt's son took-pos^sion, and carried 
oa the business, bought goods, kc, 

• (<?) Byall V. BoUeA Ves. 248 ; 1 Wils. 
260; 1 Atk. 105. Tcnmaint \, Hartop, 
Holt's C.'335. 

((£) Bru»on y. Wylie, 1 B. & P. 83, n. 

{e) Gordon v. The Bast India Com- 
pany, 7 T. R. 228. 

(/) Home V. Baker, 9 East, 215. 



RBPUTED OWKBRSHIP. 



151) 



" married/' and P. afterwards had the licence, and continued in possesuon Reputed 
of the house and goods till he became a bankrupt, the court held that A, ^''°«"Ji»P' 
could not, after asserting that P. was her husband, claim them as her sole 
property (^). So where the trustees for the wife of B, and her children by 
a former husband, permitted B. to remain in possession of the goods (on 
condition that he should pay to them certain sums for the use of the children,) 
until the evening before he committed an act of bankruptcy, the case was 
held to be within the statute (A). 

Eyidence of reputation is admissible to prove the defendant to be the 
reputed owner, where the reputation is supported by facts ; but bare repu- 
tation, unsupported by facts, although perhaps admissible, is truuffident evi- 
dence to prove an appi|rent ownership under the statute (i). 

The presumption arising from the bankrupt's pa«e«no« of property at Proof in 
the time of the bankruptcy is frequently capable of being answered and ^^^^^' 
explained away by evidence which shows that possession was given up by 
the bankrupt, as far as the natur.e of the case admitted ; or that there was not 
such a permissive possession as is contemplated by the statute. For tho 
mere possession of tlie property by the bankrupt is not in itself sufficient to 
entitle the assignees to claim it for the creditors. 

Where there is a possession, without any wilful permission on the part of 
the ow^ner which may delude creditors, the case is not within the statute ; as 
wbere,^^^, such possession is delivered as the circumstances of the case 
will permit ; or, secondly, where the bankrupt has possession as executor (A) 
or administrator ; or where the husband has possession of the separate pro- 
perty of the wife (/); or has a mere tempiora]:y, custody of it; or has the 
possession for such a purpose as excludes the presumption of ownecship, and 
consequently where no delusion can arise; as where the bankrupt has posses- 
sion as factor (m), or as bailee, or as a banker for a specific purpose. Thirdly, 
the owner may show that in point of fact the bankrupt was not the reputed 
oumer, Lasibf, the defendant may show that the possession was adverse (n). 

1st. Where a ship or cargo is sold whilst the ship is at sea, then, since Thatactaal 
actual possession cannot be taken before her return, it is sufficient if in the possession 
meantime the grand bill of sale and bill of lading be transferred, for there ^*"°°* ^ 
was no other way of delivering possession (o). So where a trader, as a 
security for money lent, assigned the bills of lading and policies of insurance 
of the cargo of a ship at sea, and the policies were indorsed to the lender, 
the trader became bankrupt, and Lord Hardwicke, C. held, that since every 
thing which could show a right to the cargo had been delivered over to the 
defendant, (against whom the assignees had filed a bill) the bankrupt could 
no longer be said to havo the order and disposition of it (p). So where a 
tnider, as a security for a debt due to the defendant, agreed to assign the 
cargo of a ship homeward bound, and to deposit the policy of insurance on 
the goods with the defendant, and to indorse and deliver the bills of lading 



given. 



ig) Mace V. CadeU, Cowp. Sd2, 
(A) Darby and others Y. Smith, 9 T.n, 
82. 

(t) Oliver v. Bartfett, 1 B. & B. 269. 
So. evidence of a contrary reputation is 
evidence for the defendant. Ourr v. Brit' 
ton. Holt's C. 327. And see MuUer v. 
Uoss, 1 H. & S. dd5; lAngham v. Biggs, 
1 d. dc P. 82; Home v. Baker, 9 East, 
215. 



(A) Ex parte Marsh, I Atk. Ifi9; 3 P. 
Wms.187; 3 Burr. 13(16. 

(0 Jarman v. Wooloton, 3 T. It 618. 

(m) Bx parte Chion, 3 P. Will. 187, n. 
Cnllen's B. L. 225. 

(n) Smith v. Topping, 5 B. & Ad. 674. 

(o) Broion v. Heatheote, 1 Atk. 160. 
Atkinson v. Mating, 2 T. R. 462. Lem- 
priere v. Pasley, 2 T. R. 485 ; supra 15 
note {s), 156, note (o). 

(p) Brotcn v. Heathcote, 1 Atk, 160,.. 



160 



bankruptcy: PROOPS in actions BT A8SIGNRCS. 



to him as soon as they arrived ; the poUcj and letters of advice were accor- 
dingly deposited with the defendant, and the bill of lading was indorsed to 
him as soon as it arrived, but after an act of bankruptcy committed by the 
trader. The defendant obtained possession of the cargo, and on trover 
brought by the assignees, the court held that the case of Brawn v. Heathcote 
strongly applied ; since, although in that case there was an assignment of the 
bill of lading, and in this, only an agreement to assign, this circumstance 
made no difference, since in both cases the title was merely an equitable 
one (g). 

Where the ship was in an Irish port at the time when the owner mort- 
gaged her, and delivered all the deeds, &c. to the mortgagee, and during the 
space of a month the mortgagee might have taken possession of her in the 
Irish port, it was held, that the delivery of the muniments constituted a 
sufficient possession, and that the mortgagee was not bound to take posses- 
sion of her in a foreign port (r). 

Where ii., a trader, deposited with B. a bill of sale, of a sixteenth part of 
a ship not at sea, and there was no evidence that the trader had acted as 
owner after the deposit, Lord Thurlow, C. held, that B. was entitled to the 
produce of the bill of sale against the assignees of A,y who had become 
bankrupt ; since in the case of assignments of shares of ships this seemed to 
be the only way of delivering possession («). 
Possession 2dly. It has been held, that where the bankrupt has possession of the 
asexecutor, goods as an executor or administrator, or under a trust {t\ the case is not 
within the statute (u) ; so that where an executor becomes bankrupt, the 
commissioners cannot seize even money which belonged to the testator, if 
it can be specifically distinguished from the property of the bankrupt him- 
self (r). Neither does it extend to a possession by the bankrupt as a trustee 
for another ; as, where a trader bought South Sea stock for J. 5. in his own 
name, but entered it in his book as bought for I, S,, after which he became 
bankrupt, it was held that I, S. was entitled to the stock (y). So where 
the husband has possession of the separate property of the wife, settled in 



&c. 



(q) Lempriere v. PaOey, 2 T. R. 465. 

(r) Ex parte BaUon^ 3 Bro. C. C. 863. 
See also AtkUuon w.MaiingfftT. R. 40S. 

(«) JSx parte Stadgroom^ 1 Yes. jnn. 
168. See also Manton v. Moore^ 7 T. R. 
67. 

(0 Shqftedntry, Earl </, v. ItttfwII, 1 
B & C. 666, where the Dake of Marl- 
borough, as the owDer of an estate, had 
the use of foinitare which was settled in 
trustees in trust to permit the owoer of 
the estate to use it, and it was held, that 
on the bankmptcy of the duke the furni- 
ture would not have passed to his assig- 
nees. So where a testator directed that, 
in case his son should carry on his tnule, 
his house and furniture should not be sold, 
but that his trustees should permit his 
widow and cliildren to reside in the dwel- 
ling-house, and haye the use of the furni- 
ture, it was held that the furniture did 
not pass to the assignees of the mother 
and son. Ex parte Martin^ 2 Rose, 831. 
Stock transferred by the accountant^ 
general into the name of tlie mortgagee 
without the privity of the mortgagor. 



does not pass. Ex parte M*^,mt^*mmj 
Buek. 480. But by true owner is meant 
legal owner ; and where a trustee sold, and 
let the purelmser into possession before 
payment, the property was held to pass. 
Ex parte Dale, Buck. 865. In general, 
property whieh the bankrupt holds as 
trustee only, does not pass to his assignees. 
Wineh V. Keeley, 1 T. R. 619. Taylor 
V. Plumer, 8 M. & 8. 576. Smith v. 
Pieherinffy Peake, 50. Ex parte Wat' 
JtinSf 1 Mont. Sc Ayr. 689. 

(«) Ex parte EaU, 1 Atk.101; 4T. 
R. 629. Ex parte Marth, I Atk. 159. 
But if a person entitled to take out admi- 
nistration neglect to do so, and he becomes 
banlutipt, the goods pass to tiie assignees, 
although he t^es out administration after 
the bankruptcy. Fox v. Fither, 8 B. & A. 
186. 

(x) Per Lord Mansfield, 8 Burr. 1866. 
1 Atk. 101. 

(y) By Lord Parker, C. Ex parte 
Chumy 3 P. Wms. 187. And see Lord 
Mansfield's observations in Maee v. Cadellf 
Cewp. 288. 



RBPUTBD OWNERSHIP. 



ICl 



as exectH 
tor, &e. 



trastees upon her before marriage (z). So where the bankrupt has posses- Poflsessioa 
sion as a mere factor or agent for sale (a). As where a carpenter receives 
timber to convert into a waggon (b) ; or a tailor cloth to work up into 
clothes (c). It was agreed between F, and JT., that K, should contract with 
the commissioners of the Victualling-office to do certain work in his own 
name ; that he should have a guinea per week, and one-fourth of the clear 
profits, and that F. should supply timber for the purpose. Timber was 
accordingly supplied by F.^ and was received by the King's officers in the 
yard where the work was to be done. F, was one of K.*8 sureties, which, 
according to the practice as to government contracts, would not have been 
allowed, had it been known that he was concerned in the contract. K, be- 
came bankrupt, and F. took possession of the timber ; and upon an action 
brought by the assignees of JT., it was held that the case did not fall within 
the statute, since there was never any sale of the timber to JT., nor any 
general delivery, so as to give him the absolute disposition of it ; and the 
storekeepers would not have permitted K, himself to have sold the timber 
to any other person, since they considered it as delivered solely for the 
purpose of the contract (d). 



(2) Jarman v. Wooloton, 3 T. R. 618. 
Bat if property be settled on the wife to 
enable her to carry on a separate trade, 
and the husband Intermeddle, the property 
wiU be Uable to his debts. Ibid. So if 
the bankrupt have the possession of goods 
which come to his wife as administratrix, 
where some of the next of kin are infants, 
they do not pass to his assignees {Vinerv, 
CadeU, 3 Esp. C. 88) ; but if she takes a 
beneficial interest in the property, her own 
share passes to the assignees, who become 
tenants in common with her in her repre- 
sentative capacity. Ibid. The goods of 
a woman married to and living with an 
insolvent, and being ignorant that he had 
a former wife living, do not pass to the 
assignees. Seeu$, if she allow him to con- 
tinue in possession after discovering the 
former marriage. Miller v. Demetz, 1 
Mo. & R. 479. See also Dean v. Brown^ 
3B. ftCSdO. 

(a) Per Lord King, C in Oodfrty v. 
FvTzOt 3 P. Wms. 186. Per Ld. Mans- 
field, in Mace v. CadeU, Cowp. 233. 
And see the observations of Lawrence, J. 
in Home v. Baker, 9 East, 815. See 
Atkbu V. Barwieh, 1 Str. 165; Fort. 
353; 10 Mod. 431. Harman v. Fisher, 
Cowp. 126. 80 if the factor takes notes 
in payment, or exchanges the goods for 
other goods, the notes or property do not 
pass to the assignees. Whitcomb v. 
Jaeoby 1 Salk. 160. And see Taylor v. 
Plumer, 3 M. & S. 562. Otherwise, if 
the ikotor sells and receives the price be- 
fore the bankruptcy, the priocipal must 
come in with the rest of the creditors. 
Scott V. Surman, Willes, 490. But if the 
price be not paid before the bankruptcy, 
but is afterwards received by the assignees, 
the principal may sue them. lb. Goods 
sent on sate and return are within the 
statute, if the party retain them after a 
VOL. II. 



reasonable time for making hisTelection has 
expired. Livetay v. Hood, 2 Camp. 83. 
Gibson v. Bray, 1 Moore, 519 ; 8 l^unt. 
76. Neatev.Ball,2EaBt,m. Aider, 
if a reasonable time has not elapsed, as if 
the goods were not received till the evening 
before the bankruptcy. 1 Moore, 519; 
8 Taunt. 76. Where there was a custom 
that the purchaser of hops should leave 
them in the vendor's warehouse, for the 
purpose of sale, it was held that they 
passed to his assignee. Thaekwaite v. 
Cock, 3 Taunt. 487. Where foreign mer- 
chants, through their agents, procured 
consignments and remitted bills to the 
consignees for the amount, and informed 
the consignors of having so done, but be- 
fore payment the agents became bankrupt ; 
held, that the latter were to be deemed 
agents through the whole transa<^ion, and 
that, notwithstanding the claim of the 
agents or the consignees, the consignors 
were entitled to recover the bills from such 
ag^ts. In re Douglas, 1 Mont. & Ch. 
( B. ) 1 . Where foreign merchants remitted 
bills to factors, who sold them and entered 
the amount of the price in their books to 
the credit of the prhncipals, who had the 
right of drawii^ on them to the amount ; 
held, that upon the bankruptcy of the 
factors the principals were entitled to the 
proceeds of the bills, and that the bank- 
rupts having indorsed them in their own 
names, were not to be deemed the owners 
of them. jEx parte Pauli, 3 Deac. 169. 
And see Scott v. Surman,Wi}leB, 405. 

(b) Collins V. Forbes, 3 T. R. 316. 

(c) Ibid. 

(d) Ibid. See the observations of Law- 
rence, J. in Gordon v. East India Com* 
pony, (7 T. R. 237), that the Court pro- 
ceeded on the ground that the bankrupt 
had possession of the property for a special 
purpose only. 

M 



163 



BANKBUPTCT : PROOFS IN ACTIONS BY AS8IONBE8. 



Po»9emion 
as banker. 



Rppntation 
and usage. 



Stoppage 
in transitu. 



So the owner mfty show thftt a banker, at the time htt beeame bankrupt, 
had possession of specific money or bills of his in his hands, not upon a 
general or running account between them, but for some specific purpose. 
l*he decision, however, of questions between the assignees of bankers at the 
time of the bankruptcy seldom, if ever, turns upon the question of reputed 
ownership : for it seems to be clear, that the mere possession of bills of 
exchange by a banker at the time of his bankruptcy, where the property 
an 1 ownership remain in the customer, does not give the banker the order 
and disposition of them within the terms of the statute («). So the mere 
custody by a bailee, for a specific purpose, is not within the statute (/). 

8dly. Notwithstanding the actual possession by the bankrupt at the time 
of the bankruptcy, since the fact of reputed ownership is usually a question 
for the jury {g), the defendant may show that the bankrupt was not in fact 
the reputed owner : as for instance, that there is a known usage in the bank- 
rupt's trade to rent on hire the utensils and articles used in the trade, since 
there the possession and use of such utensils and articles would raise no 
presumption of ownership (A). 

Where> by an agreement between the vendor and vendee of a house, it 
was agreed that formal possession should be given to the vendee, but that 
the vendor should remain in possession for three months, and the agreement 
was notarioua in the neighbourhood, and formal possession was given, and 
the purchase-money paid, and during the three months whilst the vendor 
continued in the house he became bankrupt, the court held that the case 
was not within the statute ; for during the three months the bankrupt was 
in of his own right as owner, and not by permission of the true owner ; and 
because the transfer being notorious, no person was deceived ; and that 
the fact of reputed ownership ought to have been found to raise the ques- 
tion (t). The defendant may also rebut the evidence to prove that the 
banknipt was the reputed owner, by evidence of a contrary reputation of 
ownership in himself. 

2dly. That the right to particular property vested in the bankrupt by 
delivery, &c., and passed to his assignees. 

The peculiar privilege which the law has conceded to the vendor of goods 
to a bankrupt, of stopping them in transitu before they come, in technical 
language, to the very touch of the consignee (A), frequently imposes upon the 



(«) The mere custody of saoh bills, in 
order that the banker may receive money 
npon them when due, does not give liim 
the order and disposition of them within 
the statate. See the observations of Hot 
royd, J. hi TkMi^uon v. OUe$f 2 B. & C. 
483. 

(/) The plahitiff ordered a chariot and 
paid for it, and afterwards sent it back for 
alteratioa, which being delayed he sent for 
it six or seven times, and afterwards 
ordered it to be sold; whilst standing in 
the builder's warehouse, the latter became 
bankmpt; it was held, first, that it was 
not to be deemed within this clause of the 
Act, and that the assignees were not pro- 
tected from an action of trorer after three 
months from tlie conyersion, by the stat. 
6 O. 4, c. 16, a. 44; the words << any act 
done " not applying to the pecuniary ar- 
rangement or disposition of the bankitipt's 
property by the assignees, but to acts done 



for the purpose of taking possession thereof 
by the commissioners or otliers acting under 
their warrant. Carruthen t. Pajfne^ 6 
Bing. S70. 

(g) See ilftf22ar T. Afotf, 1 M. & 8. 336. 

(h) See tlie obserrations in Home v. 
JBaA«r,9Eaat,216. 

(t) MuUar ▼. Mon, 1 M. ^ S. d3& 
And see JSastyfOody* Broten, 1R.Ae M. 
318 ; and Latimer v. Batwn^ 4 B. & C. 
663; andnipra. 

(ik) If a party ooDtract for the poichase 
of goods on specific credit, and nothing be 
said as to the time of delivery, both right 
of property and possession vest in the 
vendee; bnt his right is not abeolnte, but 
liable to be defeated by his previous in* 
solvency, before aotnal possession. Blaxmm 
V. 8anderSj4B.&C. 841. Tooke v. Hoi- 
Unffeworthf 6 T. R. 215 ; and this is on 
the grmittd of firand npon the vendor ; per 
Lord Kenyon. In such cases, therefore, 



PBTERMINATION OF TRANSITUS. 



1<J3 



assignees tbe necessity of proviDg, not only tliat there was such a delivery 
of the goods to an agent of the trader as would in ordinary cases vest the 
property in him absolutely, as by a delivery to a carrier ; but also, that the 
trannius of the goods was actually completed. 

Whether the stoppage was in tramitu, or was completely determined, is 
ordinarily a question of law (/)• In order to raise that question, it is usu- 
ally material to prove on whose risk and account the goods were sent; the 
character and situation of the agent in whose actual possession the goods 
were at the time of stoppage (m) ; by whom employed, and by whom to be 
paid ; the poesessiouy indorsement, ka. of the bill of lading (») ; the place 
and object of destinatioji (0% and the nature of the acts exercised upon them 
in their progress (p), with a view to take possession of them. 

In order to show a termination of the tramiiuM^ it is essential to prove 
either an actual or constructive delivery (q) to the vendee or his repre- 
sentative. 



Stoppa|.<:« 
ill transitu. 



Proof of 
title in the 
trader. 



Termina- 
tion of tron- 
situi. 



the assignees caimot maintain trover. Qu. 
Whether default in payment at the time 
when the credit expires destroys the 
rig^t of possession. Per Bayley, J. 4 B. 

6 C. 948. Se/nbie not, for the payment 
in snch case is not either a precedent or 
concurrent consideration. 

(/) See Feisey. Wrayy SBgmt,9d; Milli 
r,MaU,2 B. &P.467: 3 B.&P. 119. 
469; 5£ast,175; 14£ast,308; 2 H. B. 
504, Part payment does not take away 
the right of stoppage. {Hodgmm v. Xoy, 

7 T. a 440. FeUe v. Wray, 3 East, 93.) 
H or does the usage of carriers to insist on 
a Uen on goods for a general balance of 
account between them and tbe consignees, 
at all affect the right. Oppenhehn v. Rut" 
aely 3 B. & P. 42. 

(m) If he was the mere agent of the 
eottstgiMv, at whose risk the goods were 
•«nt, the delivery to him would not vest 
any property in the consignee; and the 
question, whether the property was divested 
by a stoppage in trafuitu would not arise. 
See Coxe v. Harden^ 4 East, 211. Wal- 
ley V. Montgomery J 3 East, 585. See, as 
to the delivery of plate by a silversmith to 
an engraver, who was to be paid by the 
vendor, to get the vendee's arms engraved 
thereon. OvDen$on v. MortCy 7 T. R. 64. 
As to goods delivered by the consignor on 
board a ship chartered by the consignee, 
see BohiHngk v. InglU, 3 Bast, 381 ; In- 
gits T. Utherwoody 1 East, 516 ; Coxe v. 
Harden^ 4 East, fill. To a wharfinger, 
MUU V. Bally 2 B. & P. 457. 

(n) In general, the indorsement by the 
eensignee of the bUl of lading for a valuable 
consideration, will devest the right of stop- 
page. Lieibarrow v. Mason, 2 T. B. 63 ; 

8 U. B. fill ; 5T. R. 367. Feisev. Wray, 

9 Bast, 93. Otherwise, where there is no 
eonsidenitlon. Newtom v. Thornton, 6 
Bast, 17. 

(o) JHxon ▼. Baldwin, 5 East, 175. 
Leeds v. WrigM, 3 B. & P. 320^ Seott v. 
Petit, 8 B. & P. 469. The general rule 
seems to be, that if by appointment, as be- 



tween the consignor and consignee, the 
goods are to be sent to a particular place 
where they are to wait the orders of the 
vendee as to any further destination, the 
trantitiLi is completed when they arrive 
there. Vide irrfra, note {q\ 

(p) The putting a mark on the goods by 
the assignee of the consignee, at the inn 
whither they were sent for the latter, held 
to divest the consignor's right of stoppage 
in tranntu. Bllit v. Hunt, 3 T. R. 464. 
And see Coxe v. Harden, 4 East, 211. 

(q) As by the delivery of the key of the 
warehouse in which the goods are deposited. 
Mlit V. Hunt, 3 T. R. 464. Copeland v. 
Stein, 8 T. R. 199. By payment of rent 
for the warehouse. Hurry v. Mangles, 
1 Camp. 452; Harinan v. Anderson, 2 
Camp. 243. The lodgment of a delivery- 
note with tbe wharfinger. (Ibid.) By a 
part delivery, where there is no intention 
to separate part from the rest {Slubey v. 
Hey ward, 2 H. B. 505; Hammond v. 
Anderson, 1 N. R. 68 ; Ex parte Gtoynne, 
12 Ves. jun. 379; Stoveld v. Hug/tes, 14 
East, 308) ; by delivery at the warehouse 
of the vendee's agent, where no ulterior or 
more complete delivery is contemplated. 
Leeds v. Wright, 3 B. & P. 320. And see 
3 B. & P. 127 ; Seott v. PettU, 3 B. iic P. 
469. As where they are sent to an agent 
who, under general orders from the vendor, 
sends them to a packer (Ibid) ; or by an 
act of ownership, exercised by the vendee 
whilst the goods are in the hands of his 
agent, although they have not reached the 
place of ultimate destination ( Wright v. 
Laujes, 4 Esp. C. 282); by delivery 00 
board a ship chartered and fitted out by 
the vendee (Fowler v. Kymer, cited 7 T. 
R. 442; 1 East, 552; 3 East, 396); by 
reaching an expediter, who holds them 
till he receives orders for their further 
destinatfon (Dixon v. BaXdwin, 5 East^ 
175) ; by being sent by the vendor to 
the ultimate place of destination, men- 
tioned by the vendee. Howe v. Pic^ord, 
I Moore. 526. The vendee usually ulluwcJ 
m2 



164 



BANKRUPTCY : PROOFS IN ACTIONS BY ASSIGNEES. 



Property in 
banker. 



Another class in which proof of the bankrupt's title, by a change of 
property, belongs to the assignees, consists of cases which arise between 
the assignees of a banker and his customers. For the ordinary rule is, that 
bills and securities sent to a banker are deposited for a specific purpose, in 
which case they do not pass to the assignees, and consequently it lies on the 
assignees to prove a change of property. The general principle of law as 
between the banker and a customer is, that the banker stands in the situa- 
tion of 9^ factor ; that he holds the bills of a customer transmitted before 
they are due, as the agent of such customer, for the purpose of obtaining 
payment, and with a right of lien for advances made on the credit of such 
bills (r) ; consequently, if a customer send bills to a banker, and they re- 
main in specie in the hands of such banker till the bankruptcy, they con- 
tinue to be the property of the customer, notwithstanding the bankruptcy («). 



goods brought by the defendant, a carrier, 
to remain at his warehouse until distri- 
buted by his orders to bis customers, and 
the jury found that the warehouse was 
the final destination, held that the tran- 
situi was at an end, and that the vendor's 
right of stoppage was also gone. Allan 
V. GrippcTy 2 C. & J. 218. The plaintiff 
being previously indebted to the defen- 
dants, purchased a butt of sherry of the de- 
fendants, which was to remain in the docks 
nndelivered and upon becoming embar- 
rassed he had offered the defendants to 
take it back, which was refused, and an 
arrangement for a composition was after- 
wards entered into with the creditors, the 
defendants being parties, and a sum set 
opposite their names including the sherry, 
and they received the first and largest in- 
stalment, but upon demand refused to de- 
liver the wine, or sign the release, although 
they admitted it to have been included in 
the composition ; held, that having obtained 
by the agreement security for the whole of 
their debt, tiie right of stoppage in transitu 
was gone. Nichols v. Hart, 5 C. & P. 
179. 

But such a delivery as would be suf- 
ficient in the absence of insolvency to vest 
the property in the vendee, is frequently 
insufficient to divest the right of stoppage 
In transitti. It seems to be a general rule, 
that so long as the goods are in the posses* 
sion of one who is a mere agent, to for- 
ward them, in order to give a more com- 
plete possession to the vendee, the transUus 
oontinnes : as where they are delivered to 
a wharfinger, to be forwarded to the vendee 
{Hodgson v. Loy, 7 T. R. 440; MilU v. 
Ban, 2 B. & P. 457 ; Smith v. Gos$y 1 
Camp. 283); although the whaxfinger be 
employed by the vendee (Smith v. Gost, I 
Camp 282 ; Oppenheim v. Butsel, 3 B. & 
P. 42; and see Snee v. Prescott, 1 Atk. 
245 ; Liekbarrow v. Mason, 1 H. B. 364; 
Hunt V. Ward, cited 3 T. R. 467 ; Feis9 
V. Wray, 3 East, 03) ; or to an agent who 
purchases for a principal abroad, and in- 
forms the vendor, at the time of the purchase, 
that the goods are to be sent abroad (to 
Lisbon). (Coates v. Eailton,6 B. &, C. 



422); or to a packer, by order of the 
vendee {Hunt v. Ward, 3 T. R. 467) ; pro- 
vided the vendee does not use the whar- 
finger's or packer's warehouse as his own, 
and that he contemplates an ulterior place 
of delivery ( Wright v. Lawes, 4 Esp. C. 
82 ; per Cbambre, J. Richardson v. Goss, 
3 B. & P. 127.) So a delivery of plate to 
an eng^ ver employed by the vendor ( CHoen- 
ion V. Morse, 7 T. R. 64) ; of goods to a 
common carrier (Stokes v. LaRiviere, cited 
3 T. R. 466 ; Hunter v. Real, Ibid), so long 
as the lien of the carrier remains (Craw- 
shato V. Eades, 1 B. & C. 181); or on 
board a general ship (Ibid, and 3 East, 
397; 7 T. R 440 ; Afiii* V. J5a//, 2 B. & P. 
457) ; though at the risk and expense, and 
in the name and by the appointment of the 
vendee, will not divest tiie right of stop- 
page in transitu. And see Ruch v. Hat- 
field, 5 B. & A. 632. 

(r) Giles V. PerMns, East, 12. A 
customer paid bills, not due. Into his 
bankers in the country, whose custom It 
was to credit their customers with the 
amount of such bills if approved in cash, 
charging interest: it was held that the 
customer was entitled to recover back 
those bills in specie from the assignees 
of the bankers, on their bankruptcy ; 
and per Lord Ellenborough, C. J., every 
man who pays bills, not then due, into 
the hands of his banker, places them there 
as in the hands of his agent, to obtain 
money for them when due. If the banker 
discount the bill, or advance money on the 
credit of It, that alters the case ; he then 
acqalres the entire property in it, or has a 
lien pro tanto for his advance. The only 
difference between the practice stated as 
to London and country bankers in this re- 
spect, is, tliat the former, if overdrawn, 
has a lien on the bill deposited with him, 
though not indorsed ; the country banker, 
who always takes the bill indorsed, has not 
only a lien on it if his account be over- 
drawn, but also a legal remedy upon the 
blU by the indorsement 

(*) Scott y. Surman,Wi\\QB, 400, Bol- 
ton v. Puller, 1 B. & P. 539. Thompson 



PROOF OP PROPERTY IN BAMRBR8. 



165 



And though a customer who pays bills into a banker's hands has a right to Property in 
expect that his drafts will be honoured to the amount of the bills paid in, l»iiker. 
yet the property in the bills is not altered (/). 

Such being the general rule, it follows that if it be contended that the 
banker was more than a mere depositary, with a right of lien, it lies on the 
assignees to prove it (u). 

Evidence on the part of the assignees, in such cases, consists in any facts 
which show that the owner of the bills parted with the property by a sale 
or discount to the bankers, or that they were the depositaries, subject to a 
hen (x). 

It is not sufficient to show that the bankers had a limited authority to 
discount to a certain amount, or that they had authority to discount to au 
uncertain amount, where the object is a special one ; as to honour the drafts 
or bills of the customer, or to reduce the cash balance when the bankers 
should be in advance (y). 

The best and most direct evidence on this head, consists in the autho- 
rity or directions given by the customer, especially if they be in writing (z). 

Proof that the bills were in the hands of the banker, indorted by the 
customer, is pritnA facie evidence of a discount, but not conclusive; for they 
may have been indorsed merely to enable the banker the more effectually 
to receive payment on behalf of the customer from other parties (a). 

The mode in which the bills were entered in the bankers books will not 
aflfect the question, without proof of assent on the part of the owner (b). 



T.Gaeff,2 B.&C. 482. Sx parte Hip- 
pingt, 2 Gl. & J. 08. Where a enstomer 
was m the habit of paying in bills on ac- 
count, which, if approved of, were carried 
to his account, but entered as bills to his 
credit to the ftill amount, and he was then 
at liberty to draw to that amount by 
cheques on the bank ; it was held tliat in 
the absence of proof of any agreement that 
the bills when they reached the bankers 
should become their property, the bills re- 
maining in specie in the hands of the 
bankers at the time of the bankruptcy 
might be recovered by the customer, the 
cash balance being in his fiivour. TTtompatm 
v.6t/tf,2B.&C.422. And Bee Bx partt 
ArmisteiU^ 2 O. & J.371; K. 6c M.108. 
The decision of questions between the 
assignees of bankers and customers, in 
respect of bills of exchange wldch remain 
in possession of the bankers at the time of 
the bankruptcy, seldom If ever turns upon 
the clause of the sUt 21 J. 1 (now 6 0. 4, 
c 16, s. 72), but upon the question whether 
the property has passed; or if not, whether 
the bankers were entitled to a lien. 

(0 i». & per Holioyd, J. 2 B. &C.481. 

(tt) Per Lord Eldon, G. JSx parte Sar- 
geanty 1 Rose, 163. 

(x) Although the customer, when he has 
deposited bills as a collateral security for the 
huikmpf s acceptance, has a right to have 
them returned, on exonerating the estate, 
yet the holders of those acceptances have 
no such right; for being strangers to the 
contract between the banker and his cus- 
tomer, they can claim no lien. If the 
customer in such case also become bank- 



rupt, as the banker's estate cannot be 
exonerated without discharging such bills, 
it seems that the Lord Chancellor will 
order such an arrangement as will make 
such bills ayailable. Sx parte Waring 
and Ex parte Inglie, 2 Bose, 282. Yet 
qu, whether in principle the OYmers of the 
bills ought to receive more from such 
securities, in proportion to their debt, 
than the other creditors receive from the 
banker's estate? had the customer re* 
mained solvent, the banker's assignees 
could not, it seems, have claimed more on 
the securities than they paid to those cre- 
ditors rateably with the rest; the holders of 
the bills would have been entitled to have re- 
sorted to the customer (beingthedrawer/cc.) 
for the remainder of the debt, and he having 
become bankrupt, they ought not, as it 
seems, on that account, to receive more 
from the banker's estate, but to be paid 
their proportion of the remainder rateably 
with the customer's creditors. 

(y) Ex parte Wdk^ld Bank, 1 Rose, 
243. Ex parte Leeds Bankjlh, 254. Qu, 
Whether a general authority be snificienty 
&c. Lord Eldon, C, in the cases arising 
on Bolder&s bankruptcy, seems to have 
been of opinion that it would. 

(z) Ex parte Dumas, 1 Atk. 232. 

(a) Ex parte Towgood, 19 Yes. 229. 
Thompson v. OUeSf 2 B. & C. 422. 

(h) Bills not due and entered s?u>rt in 
the banker's books, are considered the pro* 
perty of the enstomer. ** The fact that 
bills were not written short, amounts to 
nothing, unless there be a concurrence 
manifested at the time, or to be inferred 
m3 



166 



bankruptcy: proofs iv actions bt assignees. 



Property 
In banker. 



On the other hand, the writing the hills short is merely evidence of the 
nature of the remittance. If it be accompanied by a letter which di* 
rects its application, that cannot be got rid of by the unauthorized act of 
the banker (c). 

Where the bills are entered short, if it appears from the habits of dealing 
between the parties that they were considered as cash, they will pass to the 
assignees (<£). 

In general, where bills have been deposited by the plaintiff to answer a 
specific purpose, which has not been answered, and they remain in the 
hands of the assignees after the bankruptcy, the owner is entitled to recover 
them from the assignees (e), or to hold them against the assignees. 



from the habits of dealing between the 
parties that they were to be considered 
at cash. If they were there, with the 
owner's knowledge, a* cashy and he draws, 
or is entitled to draw on them, as having 
that credit in cash, he is precladed from 
recurriag to them specifically, but it l^e 
on the assignees to prove that to be tne 
ease : the owner is entitled unless the bills 
hav« been carried to his credit with his 
knowledge or consent Per Lord Eldon, 
in Ex parte Sargeant, 1 Rose, 153. Bills 
of exchange having been paid by a cus- 
tomer to his account with a banker, were 
entered as cash, with a distinct interest 
account; the customer had credit to the 
amount of the bills so entered, but did not 
overdraw the account ; there was a cnstom 
in the country to circulate short bills, but 
no express authority was given to circulate 
the bills in question. The Ld. Chancellor, 
reversing the decree of the Yice^hancellor, 
held that tiie bills did not pass to the 
assignees. JSx parte Benson, I Mont. & 
Bligh, 120. 

(c) See £x parte Damas, I Atk. 232, 
1 Rose, 243. 

(rf) Bx parte Thompson, Mo. & M. 102. 

{e) As where A. remitted bills to JB., a 
banker, for the express purpose of answer- 
ing other bills drawn by il. on the banker, 
on a particular account, which latter bills 
had been dishonoured by the banker, and 
paid by A, before the bankruptcy of B. 
Lord Eldon, C. observed, it is cleaily set- 
tled, that where bills are remitted on a 
general account, and there is no evidence 
to the contrary, they cannot be followed in 
case of bankruptcy ; if remitted for a par- 
ticular purpose, they may. Ex parte Pease, 
1 Rose, 241. Where ^. and B, had a 
general running account, consisting of bills 
drawn by B. on C. in favour of i4., and of 
bills and other securities deposited by A, 
with B,, and upon the failure ofB. and C, 
A, was obliged to take up the bills received 
by him from B., whereby the balance of ac- 
coants was in favour of ^.,it was held that 
he could not maintain trover for the bills 
deposited with B. unless they had been 
specifically appropriated to answer ^.'s 
drafts on C. in favour of ^., and deposited 
for that purpose expressly. Bent v. Puller, 
6T. K. 404. Where A, sent certain bills 



of long dates to B,, a banker, requesting 
permission to draw bills of shorter dates 
without renewals, and sent the long bills 
indorsed to B, In the letter of request, and 
JB. answered, that agreeable to A .'s request 
he had discounted the bills, and then spe- 
cified the amount to be drawn for ; it was 
held that the transaction did not amount 
to a sale or exchange of bills upon dis- 
count, but to a deposit of the long bills, on 
condition of being allowed to draw shorter 
bills, and therefore, that B. having become 
bankrupt, whereby A*^ bills were di»- 
honoured, the long bills which remained in 
B*% possession at the time of the bank- 
ruptcy did not pass to the assignees. Parke 
T. ElioMon, 1 £ast,M4. C<dliM v.Martia^ 
1 B. & P. 649. So where A. had trans- 
mitted to B, his banker, bills to answer 
outstanding acceptances by B. on account 
of A ., upon an agreement by il. to make re- 
mittances to answer such acceptances 
when due; and the acceptances were not 
paid by B., but by A. after the bankruptcy 
of B. ; it was held, that the bills remitted 
for the purpose oif answering these ac- 
eeptances were in the nature of goods in 
the possession of a factor, and that they 
belonged to i4., subject to B.'b lien for the 
balance due at the time of the bankruptcy ; 
and that having been deposited by B. with 
another banker, who had set them short in 
the bankrupt's book, they were the same 
as if still in possession of the bankrupt. 
Zinehe ▼. Walher, BL R. 1164. A. and 
B, agreed that A. should sell to JB. lif^ht 
guineas from time to time, and that A, 
should draw upon B. from time to time 
for the money due upon such sales ; and 
that B, should accept other bills drawn by 
^. for his own convenience, for vrhich A. 
was to remit valoe. B. being under ac- 
ceptances to a large amount became 
bankrupt, and A. being ignorant of the 
bankruptcy, sent light gold and bills to 
enable B, to discharge such acceptances ; 
and it was held, that A., who had since 
paid J3.*s acceptances, was entitled to the 
gold and bills so sent against the assignees. 
Toohe V. HoUingtoorth, 5 T. R. 215, af. 
firmed in the Excheq. Cham. 2 H. B. 601. 
A, B, C.k. JD. being partners as brokers 
at Liverpool, and C. & D. being partners 
as merchants at London, J, S, having 



PROOF OP PROPBBTY IK BANKERS. 



167 



Where bills are not remitted for a particular porpowi but to be discounted, Propcrtr 
«nd are diBooonted (/*), or by one trader to another on a running account (g)^ i° bdukur. 
«r on an exchange of bills for biUi, they paw to the assignees (A). 

Where it was agreed between four partners as bankers, and a customer, 
that the latter should indorse bills, and take the notes of the bankers in ex- 
•change, and this was done after three of the four had become bankrupt, it 
was held after the fourth also became bankrupt, that as the considera- 
tion for indorsing the bills had failed, the assignees oould not retain 
them (i). 

3dly. So eridence may be necessary to show the light of the assignees DisafHrm- 
in disaffirmance of some disposition of the property by the bankrupt. As f"^f ^'^ .> 
to show that a conveyance in favour of his children was fraudulent (A). m^i^. 

The general effect of bankruptcy is to avoid all acts of the bankrupt sub- 
sequent to the bankruptcy, by making the right of ttte assignees to relate 
to the act of bankruptcy ; and therefore the assignres may usually avoid 
«nd disaffirm such a transaction by the bankrupt by evidence of a previous 
act of bankruptcy and petitioning creditor's debt The very purchasing of 
goods from a trader, after such an act of bankruptcy, is a conversion (/.) 

Dispositions by process of law stand on the same footing with dis- 
positions by the iMUikmpt ; to be valid, they must be complete before 
the bankruptcy (m). 

If a sheriff seize and sell goods under an execution, after an act of 
bankruptcy, even without notice, and before the commission, he is liable 
in trover (n), and the assignees are not bound to prove any demand, 
since the execution was tortious (o). Or the assignees may treat the 



accepted bills payable at the house of C. 
k D.y employed A,B,C,6lJ)» to get them 
paid, and agreed to deposit good bills with 
them, indorsed by him, to enable them so 
to do. A, B, C, h D, debited J. S, inao- 
oonnt for his acceptances, and credited him 
with all the bills which he had deposited; 
some of the bills bo deposited were remitted 
by A. B. C. & J),, to CicJ)^ upon the 
general account between the two houses ; 
and before any of the acceptances of J. S. 
became due, both bouses failed, and J, S, 
was obliged to pay all his acceptances; and 
it was held, tliat the assignees of C. k. H, 
were entitled to retain against aT. 5. all the 
bills which had been remitted by ^. ^. C 
& 2>«; also, that it made no difference that 
one of the hUls remitted did not arrive till 
after the bankruptcy of C. k D, Bolton 
V. Puller^ lB.kV. 539. And see Colling 
V. Martiuy 1 B. & P. 648. 

(/) Cargiairs v. Batet, 3 Camp. C. 301 ; 
2 B. & C. 432. 

(jf) Burt v. PuOer, 5 T. R. 404. 

(h) HombUncer v. Proud, 2 B. & A. 
827; and vide supra, Clarke v. JSliason, 1 
East, 664. 

(0 Bx parte JiTOae, 2 Rose, 376. 

(A) Where the only evidence of insol- 
vency at the time of a banl&nipt*8 executing 
a voluntary deed in favour of his children, 
was that he had given two bills which had 
never been paid, except by renewals, and 
which, at the time of his bankruptcy, f ur 
years after, were still unsatisfied, held to be 



insufficient to establish a case of insol* 
vency at the time of executing the deed, 
within the« Geo. 4, c. 16, s. 73. Notice 
of a difficulty to meet particular demands 
is not notice of insolvency, bat It most be 
of a more general and extensive description, 
as of a general composition, or paying cre- 
ditors portions only of their demands, and 
not in the usual way. Cutten v. Sanger, 
2 T. & S. 459. And see Reader v. Knatch- 
hull, 6 T. R. 228. Bayly v. Sehqfield, I 
M. k 6. 338; Anon. 1 Camp. 135; and 
Abraham v. Oearge, 11 Price, 423. 

(J) Hurst v. Gwennap, 2 Starkie's C. 
306 ; even although the assignees have de- 
manded payment, Ibid. See the late st. 
u^ra, 172, 173. 

(m) Per Lord Mansfield, Burr. 32 ; see 
2 B. A A. 98. 

(n) This has been so deckled upon argu- 
ment in the court of Bxckeqner. Astigneee 
of Potter T. Stag>kie» See Smith v. MUU, 
1 T. R. 475; BaUey ▼. Bunmng, I Lev. 
172; Cole t. UrnHs, Ld. Raym. 124; 
Cooper T. ChiHy^ 1 Bur. 20 ; and the 
eases collected, 1 MoDtague's B. L. 474. 
The single questkm determined in BcUiey 
y. Bunning, and raserved by the special 
verdict, was, whether the taking was law- 
ful ; and upon that the court determined. 
B. K. P. 41. And now see Garland v. 
Carhile, 10 Blng. 462 ; 4 Bing. N. C. 1 ; 
Balme v. Huiton^ 2 Y. & J. 101. 

(o) Rush V. Baker, B. N. P. 41. 
M 4 



168 



BANKRUPTCY : PROOFS IN ACTIONS BY ASSIGNEES. 



Evidence 
in dis- 
affirmance 
of bank> 
rupt's acts. 



Money had 
& received. 



sale as valid (p). And if the creditor assisted in the levying the ex- 
ecution, trover will lie against him, although the money remain in the 
hands of the sheriff (q). But where the sheriff takes goods in execution 
hefore an act of bankruptcy, he is not liable for a conversion in selling 
them afterwards (r). Where the sheriff seized the goods in execution, 
and afterwards, but on the same day, the trader surrendered himself in 
discharge of his bail, and committed an act of bankruptcy by lying in 
prison for two months, it was held that the assignees were not entitled to 
recover («). 

The assignees cannot recover in trover the amount of a cheque paid by the 
banknipt's bankers after the bankruptcy, against a creditor to whom the 
cheque had been delivered and the money paid (t) ; neither can they re- 
cover in trover for bills fraudulently obtained from the bankrupt, after his 
bankruptcy, for the bankrupt never could have any property in them ; but 
if the party obtaining them receive the proceeds, the assignees may recover 
for money had and received (u). 

They cannot affirm a transaction as to part and disaffirm it as to the rest, 
nor disaffirm a transaction after having once affirmed it (x). A per- 
son after the bankruptcy buys bonds with the bankrupt's money and 
delivers them to the wife, the assignees cannot seize the bonds as part of 
the estate, and maintain trover for the money (y) ; so after recovering from 
a banker money which he paid to a holder of a draft of the bankrupts after 
the bankruptcy, they cannot recover from the creditor to whom the money 
was paid (z). 

It has been held, that the assignees may recover from a creditor in 
England money which he has attached abroad, after the assignment, as 
money had and received to their use (a). So they may recover, in the same 
form of action, money paid by a trader for the carriage of goods after a 
secret act of bankruptcy (b) : money which is the produce of goods pledged 
by the trader's direction, after being arrested at the defendant's suit, but 



( p) Where after notice of bankruptcy 
the sheriff seized and sold goods to the 
execution creditor, who afterwards sold 
them to F,, who subsequently became an 
assignee, hdd, that though they might have 
treated the sale as invalid and disposed of 
the goods, yet that they might suffer F. to 
continue the possession, and claim the 
value as against the sheriff. Vaughan v. 
WUkins, IB.Sc Ad. 370. 

{q) Menham v. JBdnumson, 1 B. & P. 
369. 

(r) r%ofiuuT.I>efan$rer,2B.& A.58a 
Cde V. Davit, Ld. Raym. 124. Sadler v. 
Leigh, 4 Camp. 197. And now see the 
Stat. 6 G. 4, c 16, s. 81, tn/ra, 170. If the 
money be in the hands of the sheriff, and 
before the return of the writ, the debtor 
becomes bankrupt, the execution creditor 
is entitled. Wymer v. Kemble, 9 D. & R. 
511. Fox V. Burhidge, in K. B. 

{t) Tkomat and others v. Detangee 
and another, 2 B. dc A. 566; Sup, 102. 
SeeTiMB. 
{t) MathewY, ShertoeU, 2 Taunt 439. 
(u) Walker v Laing, 1 Moore, 281. A 
debtor deposited the title-deeds of houses 
with his creditor as a security, and after- 



wards executed an assignment of his in- 
terest in the houses to the same party, but 
this instrument was never registered pur- 
suant to the statute 7 Anne, c. 20. The 
debtor afterwards became bankrupt, and 
the assignment of his effects under the 
commission was duly registered. The 
assignees brought an action against the 
creditor for the rents of the houses which 
he had received from the time of the as- 
signment made to him by the banluupt. 
Held, that although this instrument was 
void, the rents which the defendant 
had received as equitable mortgagee, could 
not be taken out of his hands by virtue of 
the registered assignment under the com- 
mission. Sumpter and others v. Cooper, 
2 B. & Ad. 223. 

(x) Brewer v. Sparrow, 7 B. &C. 810. 

(y) Wilson v. Poulter, 2 Str. 859. 

(z) Vernon v. Hanson, 2 T. R. 287. 
Eren as trustees for the banker, who had 
no other means of recovering the money. 

(a) Hunter v. Potts, 4 T. R. 182. See 
also Sill V. Worstoiek, 1 H. B. 665; PhU" 
lips V. Hunter, ^ If. B. 402. 

(ft) Bradley v. Clark, 5 T. R. 107. 



DI8AFFIBMANCB OF BANKRUPT S ACTS. 



169 



without bis piiTity, after a secret act of bankruptcy » and paid oyer to the 
defendant, although not the identical money raised by the pledge (c) ; 
money receiyed by the banker of the bankrupt, and paid oyer to a creditor 
with knowledge of the bankruptcy (d), or to the bankrupt. Money paid 
by way of yoluntary preference (e ). So where the sheriff, after an act of 
bankruptcy, seized the bankrupt's goods under a Jieri faciasy and executed 
8 bill of sale of them to the execution creditor, it was held that the assignees 
might recoyer the amount (y). Where a creditor, knowing the bankrupt's 
iD:<olYency, induced him to draw bills, and induced the drawees to accept 
them, it was held, that though neither the bankrupt nor his assignees had 
any property in the bills, so that the latter could not maintain troyer, yet 
that they might maintain an action for money had and receiyed when the 
bills were paid (jr). 

Where a trader in prison employed an auctioneer to sell his goods, who 
returned him the proceeds by the hands of the defendant, who was the 
mere bearer, it was held that the assignees could not recoyer the money 
from him (A). 

Where a debtor to the bankrupt on policies of insurance, which haye 
been deposited by the bankrupt with a creditor as a collateral security after 
a secret act of bankruptcy, glyes his acceptance, which he afterwards pays 
to the creditor, the assignees cannot recoyer the amount from the creditor, 
although the broker who paid the money retained the amount so paid by 
him on settlement with the assignees, for it was the money of the broker, 
and not of the bankrupt (i). 

Where the trader has sold goods at prices yery inferior to their yalue, 
the assignees cannot recoyer the difference {k). 

Where a bill of exchange was indorsed by the bankrupt after his bank- Proof of 
niptcy, and the indorsee receiyed the amount, it was held that the assignees disaffirm- 
could not recover for money had and receiyed, but must resort to the action J°^u ^'^ 
of trover for the bill(/). bankrupt. 

The general relation of the title of the assignees to the act of bankruptcy, proof of 
i^ in Heyeral instances restricted, in order to relieve those who have dealt notice 
bona fide with a bankrupt without knowing him to be such. In cases ^ben ne- 
within some of the provisions of the statute, it is incumbent on the assignees 
to prove that the defendant had notice of the prior act of bankruptcy. 



(c) Allansan v. AtHnsati, 1 M. & 8. 
583. 

(rf) Venum v. Hankey, 2 T. R. 115. 
Bot they cannot afterwards recover from 
the creditor. Vernon v. Hanton, 2 T. R. 
287. 

{e) Poland v. Olyn, 2 D. 5c R. 310. In 
OMumprit by assignees tor money received 
to the use of the bankrupt before the 
benkmptcy, plea, that the money, although 
ia the defendant's possession after the bank- 
niptcy, was in Act received before, and 
that the bankrupt was indebted to the 
defendant in a large snm, which he claimed 
to si>t oiF, held bad, as confessing, bat not 
avoiding ; as, if received before the bank- 
>^ptcy, the assignees conld only claim it 
^^ received under a fraudulent preference, 
in which case the general issue would be 
th.' proper plea. Wood v. Smith, 4 M. 
o: W. 522 ; and 7 Dowl. (P. c.) 214. 



(/) Reed v. James, 1 Storkie's C. 134 ; 
and see Butler v. Carver, 2 Starkie's C. 
433. 

{g) Walker v. Laing, 7 Taunt. 568. 
But where A, after his bankruptcy, and to 
procure bis discbarge from an arrest at the 
suit of B,, drew and indorsed bills of ex- 
change, which C. accepted, under the ex* 
pectation of receiving goods of ^.'s, and 
after receiving and selling tlie goods, paid 
the amount to B, ; it was held that the 
assignees could not recover the amount 
from B. Waller v. Drakeford, 1 Starkie's 
C. 481, tamen qutere, 

(h) Coles V. Wright, 1 Taunt 408. 

(i) Hovil V. Pack, 7 East, 163; and 
see WiUis v. Freeman, 12 East, 656. 

(k) Hogg V. MitcheU, 1 Starkie's C. 
241. 

(0 Waller v. Dedkeford, 1 Starkie's C. 
481. 



170 



banksoptct: proofs in actions by assignees. 



The stat 6 Geo. 4, c. 16, s. 81, enacto, that all conveyances by, and all 
contracts and other dealings and transactions (m) by and with any bankrupt 
bon&fide made and entered into more than two calendar months before the 
date and issuing of the conmussion against him, and all executions and at- 
tachments against the lands and tenements or goods and chattels of such 
bankrupt, honAfide executed or leyied (ii) more than two calendar months (o) 
before the issuing of such commission, shall be valid, netwithstaading any 
prior act of bankruptcy by him committed ; provided the person or persons 
so dealing with such bankrupt, or at whose suit or on whose account such 
execution or- attachment shall have issued, had not at the time of such con- 
veyance, contract, dealing, or transaction, or at the time of executing or 
levying such execution or attachment, notice (p) of any prior act of bank- 
ruptcy by him committed : provided also, that where a commission has been 
superseded, if any other commission shall issue against any person or 
persons comprised in such first commission, within two calendar months 
next after it shall have been superseded, no such conve3^anoe, contract, 
dealing or. transaction, execution or attachment, shall be valid, unless made, 



(m) Under the stat. 46 G. S, e. 136, 
s. 1, it was held, that by trfmioctionM are 
meant such as occur between parties In 
the usual course of business, and not such 
as are carried on through the medium of 
legal process (Blogg v. PhiUips, 8 Camp. 
iS)) ; and therefore that the terms did not 
extend to the levying under an execution 
by a creditor after a secret act of bank- 
ruptcy, more than two months before the 
commission, lb. Where a bill was deli- 
vered by the trader, with intent to trans- 
fer the property, more than two months 
befine the commission, but was not actually 
indorsed till within the two months, it was 
held, that the indorsement had relation to 
the delivery. 1 Camp. 402. Where the 
bankrupts had transfeired wines more than 
two months before the issuing of the com- 
mission, by mistake, into the names of ii. 
^ Co.f Instead oiA.^Son, being different 
Arms, but the mistake was corrected within 
two months; held, that the mistake did 
not defeat the right of Z. jr Son, as at all 
events A, {r Co. would be trustees for 
them; held also, tiiat a prior oommissloii 
having issued, though not acted upon nor 
gaietted, was sufficient within the proviso 
of 6 Geo. 4, c 16, s. 81, to deprive the de- 
fendant of the protection of tlie statute as 
to a subsequent transfer. Peekham v. 
Lash$no&r, 1 M. & M. 861. 

(n) The selsure is a levying within the 
Act Oodnm v. Sanctuary, 4 B. & Ad. 
255. See Wray v. Lord Sgremonif lb. 
122. Where the exeeation is on a Judg- 
ment obtained by default, confession, or 
nU dieit, see. 108 enacts, that the creditor 
sliall not avail himself of such execution 
to the prejudice of other fair creditors, but 
shall be paid rateably. An execution on 
a final judgment, alter a judgment by 
default, was held to be witiiin the provi- 
sions of the 6 G. 4, c. 16, s. 108, although 
obtained before the Act came into opera- 



tion. Cuming v. Wtlrford, 6 Bfaig. 602. 
This section applies where, in such a ease, 
the goods have been seized, but the execu- 
tion is not completed ; where the execution 
has been completed, the case fells within 
the 81st sect. TTymer v. Kembie, 6 R & 
C. 470, and see Thomas v. Desanffd, 2 B. 
& A. 686. Sadler v. Leigh, 4 Camp. 107. 
This clause, it is hekl, does net avoid an 
execution leHed by seisure before baak- 
raptcy on a judgment by nil dieU, but 
only provides tliat the execution creditor 
eheJl share rateably with the rest. Taylor 
V. Taylor, 6 B. ftC. 892; 8 D. & R. 160. 
By the stat 1 W. 4, c. 7, s. 7, no judg- 
ment signed or execution issued upon cog^ 
novit, signed alter declaration filed or 
delivered, or jadgment by defeult, eonfea- 
sion, or nil dicit, according to the practice 
of the Court, in any action commenced ad- 
versely, and not by collusion, for the pur- 
pose of feamdnlent preference, to be deemed 
within the 6 Geo. 4, c 16, s. 108. 

(o) On a commission Issuing May 14th, 
a dealing BCareh 14th it valid, Cmcie v. 
Harris, M. & M. 141. The execution of 
a JL fa. at 11 o'clock on the Idth of 
August, is a levying more timn two months 
before the IStJi of October, Oodson v. 
Sanctuary, 4 B. & Ad. 266; 1 N. & H. 
62. 

{p) The isauittg of a commissien is not 
in itself notice, and therefore payment 
alter commission issoed, bnt without actual 
knoidedge, &e. is protected. Sowerby v. 
Brooks, 4 B. & A. 628. A trader, after an 
act of bankruptcy, sells goods to 3., who 
pays for them, without knowledge of the 
bankruptcy ; the assignees cannot maintain 
trover for the goods without tendering tlie 
money. Cash v. Young, 2 B. & C. 416 ; 
but see Hurst v. Otcennap, 2 Starkle'S C. 
S06. Note, in the latter case the goods 
had not been paid for. 



DISAFFIRMANCE OP BANKRUPT S ACJTB. 



171 



entered into^ execated, or levied more than two calendar months before the Notice 
issuing the first commission. ®^ '*»"''" 

Sec. 83 enacts^ that all payments (q) really and h<ma Jide (r) made, or "'^ ^* 



(q) A delivery of goods bonAJide in part 
payment of a previous debt, after a secret 
act of bankmptcy, is protected. Cannon 
V. Woody S M. & W. 465. So if oMh 
be given for a bank-post bill, Willit v. 
Bank qf England, 4 Ad. & EU. 21. So 
where a party,withio two months hefon the 
fiat, pledged goods on an advance of money. 
Wright t. Fremley^ 6 Bing. N. C. 80. 
See also Mageev* Nia$y 1 Bing. 311; and 
tit. Patmbht. An assignment as a se- 
enrtty for money lent hi tmst to per- 
mit the assignee at the expiration of a 
time specified to sell them in discharge of 
the debt, is not protected. A fiat israing 
witUn two months after the assignment on 
a secret act of baniunptcy, previous to 
the assignment. Carni/on v. Denew, 10 
Bing. 292. 

(r) This elanie is substituted for the 
provision of the stat. 19 O. 2, c. 32, s. 1, 
which protects payments to real and hcn& 
Jide eraditors of any bankrupt, for or in 
respect of goods really and iHm&fide sold 
to such baniuupt, or for or in respect of 
any bills of exchange really and hon&fide 
drawn, negotiated, or accepted by such 
bankrupt, in the usual or ordinary course 
of trade and dealing. A payment under 
an arrest of the bankrupt, as the acceptor 
of a bill of exchange, has been held to be 
within the Act. Cox v. Morgan^ 2 B. & 
P. 398, Chambre, J. di»8. See also Holmes 
V. Wenningtony 2 B. & P. 398. JEz parte 
Farry 9 Ves. Jil6. That payments on 
bills not yet due were not within the act 
(temble). Tamplin v. Diggvu^ 2 Camp. 
312. Nor on oooomnuMia^ion bifls. Hol^ 
Togd V. WhUeheadj 3 Camp. 630 ; 2 Camp. 
316; 1 Marsh, 128; 2 H. B. 384; 11 
East, 127. An advance of money upon 
a deposit of goods amounts to no more 
tlian a loan, and not a payment protected 
within the statute^ although hon& fidey 
and without notice of an act of bank* 
niptcy. Wright v. Feamlegt 6 Bing. N. 
C. 80; 6 Sc. 813; and 7 Dowl.(p. c.) 
129. And see Cantnan v. Denew, 10 
Bing. 292. A payment of a debt by weekly 
instalments after an act of bankruptcy 
was held not to be witiiln the statute. 
BoUon V. Jagety 1 By. & M . 266. Where 
a factor accepted a bill in favour of his 
principal, after a secret act of banlcruptcy, 
and after notice the factor paid the amount 
to tlie holder, it was held that the payment 
was within the protection of the statute. 
Wiikine V. Casey, 7 T. a 711. CoUt v. 
i{«6»ni, 3 Camp. 183. Where a banker* on 
whom a bill of exchange had been drawn, re- 
quested, when it became due, that it might 
remain in his hands, and promised to pay 
interest, and afterwards, upon application 
by the bolder, who had no notice of a 
previous act of bankruptcy, paid the 



amount, it was held that the transaction 
amounted to a loan, and was not within 
the statute. Vernon and others v. Haily 
2 T. R. 648. Where A. having obtahied 
a verdict against JB., who afterwards com- 
mitted a secret act of bankmptcy, instead 
of entering up Judgment and takuig out 
execution, took a bill drawn by JB. on C, 
which was paid when due, it was held that 
the payment vras not within the statute. 
Pinherton r. MarshaU, 2 H. BL 334. 
The statute did not extend to a pay- 
ment by the debtor of the banJu^pt upon 
a judgment against him on a foreign 
attaclmient, since it mentions payments 
by the bankrupt only. HooU v. Brown^ 
ing, 7 East, 164. Where a factor accepted 
and paid bills on the strength of goods 
consigned to him by his principal, after a 
secret act of bankmptcy, and after a com- 
mission, sold the goods and received the 
money ; it was held that he was not pro- 
tected either by the stat. I Jac 1, c. 16, 
s. 14, or 10 Geo. 2, c. 32, s. 1. A bond 
Jide payment eight days before the com- 
mission issued, is protected by 6 G. 4, 
c 16, s. 82. The creditor having met the 
party at an office where he knew he was 
going to receive money, obtains payment 
of his debt, not knowing either that his 
debtor was insolvent or a prisoner; the 
Jury negativing any fraud, such payment 
is not a fraudulent preference. ChurehUl 
V. Crease, 6 Bing. 177; 2 K.& P. 416. 
Where the defendant, after an act of bank- 
ruptcy unknown to him, and within two 
months of the issuing of the commission, 
purciiased a lot of books from the bank- 
rupt, a hop-merchant, and paid him for 
them ; held, that such payment was valid, 
and that the assignees could not rescind 
the oontract and maintahi trover for tiie 
books, without an offer to return the 
money; and that the same construction 
was to be applied in all cases of bonJk fide 
sales, whetlier the goods were or not such 
as the baniumpt usually dealt in. HiU v* 
Famell, 9 B. & C. 46. Where the de- 
fSendant, after a secret act of bankruptcy, 
sells goods at so low a price as not to be 
in the usual course of business, with the 
knowledge of the purchaser, the transac- 
tion is not within the protecticm of the 
statute. Ward v. Clarhey 1 M. & M. C. 
497. The defendant, at the request of 
the bankrupt, after a secret act of bank- 
ruptcy, lent hhn his acceptance for 98 Z., 
and at a later period of the same day, in a 
conversation as to security, the l>an]£rupt 
agreed to sell horses to the defendant for 
70 L, wliich were subsequently delivered ; 
held, that the latter transaction was not 
protected by sect. 82 of 6 Geo. 4, c. 16, it 
not being a sale of goods with payment of 
the price, but a rale of goods with an 



172 



bankruptcy: proofs in actions by assignees. 



Notice of 
bank- 
ruptcy. 



which shall hereafter be made (s) by any bankrupt, or by any person on his 
behalf, before the date and issuing of the commission against such bankrupt, 
to any creditor of such bankrupt (such payment not being a fraudulent 
preference of such creditor), shall be deemed ralid, notwithstanding any 
prior act of bankruptcy by such bankrupt committed ; and all payments 
really and bona fide made, or which shall hereafter be made to any bank- 
rupt, before the date and issuing of the commission against such bankrupt, 
shall be deemed valid, notwithstanding any prior act of bankruptcy by such 
bankrupt committed ; and such creditor shall not be liable to refund the 
same to the assignees of such bankrupt, provided the person so dealing with 
the said bankrupt had not, at the time of such payment by or to such bank- 
rapt, notice of {€) any act of bankruptcy by such bankrupt committed. 

Sec. 83 enacts, that the issuing of a commission (u) shall be deemed 
notice of a prior act of bankruptcy (if an act of bankruptcy had been actually 
committed before the issuing the commission,) if the adjudication of the 
person or persons against whom such commission has issued shall hare been 
notified in the London Gazette, and the person or persons to be affected by 
such notice may reasonably be presumed to have seen the same. 

Sec. 84 enacts, that no person or body corporate, or public company 
having in his or their possession or custody any money, goods, wares, mer- 
chandizes or effects, belonging to any bankrupt, shall be endangered by 
reason of the payment or delivery thereof to the bankrupt or his order, 
provided such person or company had not at the time of such delivery or 
payment notice that such bankrupt had committed an act of bankruptcy. 

Sec. 86 enacts, that if any accredited agent of any body corporate or public 
company shall have had notice of any act of bankruptcy, such body corpo- 
rate or company shall be thereby deemed to have had such notice. 

Sec. 86 enacts, that no purchase from any bankrupt Jxmk fide^ and for 
valuable consideration, where the purchaser had notice at the time of such 
purchase of an act of bankruptcy by such bankrupt committed, shall be im- 



agreement to set off the price against 
a liability on the part of the bank- 
rupt. Carter v. Breton^ 6 Bing. 617. 
Where, after an act of bankruptcy by one 
of two partners, he paid a partnership debt 
to a creditor who had knowledge of the 
act of bankruptcy; held, that such pay- 
ment was not protected by the 82d Met 
of 6 Geo. 4, c. 16, as he had himself 
ceased to have any interest in the partner- 
ship funds, and his authority to make any 
payment for his partner was dissolved. 
Craven v. Edmondson, 6 Bing. 734. And 
see Haiokmt v. Penfoldy % Yes. 550. 
Mont. & B. 311. Carter v. Picton^ 6 
Bing. 617. Goods delivered in payment 
of a bill of exchange then overdue, is not 
a payment within this clause, Smith v. 
Moon, 1 M. & M. 458. Shaw v. Batley, 
4 B. & Ad» SOI. Bradlfury V, Ander- 
ton, 1 C. M. & R. 486. See Oreen v. 
White, 3 Bing. N. G. 50. 

(«) The expression '^ payments made" 
cofltraste<l with the following, ^* henceforth 
to be made," clearly renders the provisions 
retrospective, and comprehends payments 
made at the time, and therefore before the 
passing of the Act TerrintfUm v. Bar- 



greaveSf 5 Bing. 480. And see Churchill 
V. Create, 5 Bing. 180. 

(t) These words are to be construed 
** notice of an act of bankruptcy by any of 
the bankrupts " committed. Hawkine v. 
Whitten, 10 B. &.C. 217. A payment 
by one partner, who has committed an act 
of bankruptcy, of a partnership debt due 
before the banlumptcy to a creditor who 
has notice of the act of bankruptcy, is 
not protected. Craven v. Edmtmdton, 6 
Bing. 734. A payment for goods pur- 
chased from a bankrupt just before his 
bankruptcy is not protected if the pur- 
chaser knew, or had the means of know- 
ing, the bankrupt's circumstances. Dewes 
v. Venables, 3 Bing. N, C. 400 ; and see 
Oreen v. White, lb. 50. Although notice 
of a docket struck be not of itself evidence 
of an act of bankruptcy, yet being con- 
nected with the fact of the defendants 
requiring security before payment made, 
a jury may infer notice. Spratt v. Hob- 
house, 4 Bing. 181. 

(«) By the issuing of a commission is 
meant its passing under the great seal, 
whether it l)e opened, or acted upon, or 
not. Watkim v. Maund, 8 Camp. 806. 



DI8AFFIRMANCB OP BANKRUPT'S ACTS. 



173 



peached by reason thereof, unless the commission against such bankrupt Notice of 
shall haye been sued out within tweWe calendar months after such act of ^^^'^^ 
bankruptcy. mptcy. 

Again, in cases within the stat. 6 O. 4, c. 16, s. 78, it would be necessary iDsolvency. 
that the assignees should prove the insolvency of the bankrupt at the time 
of the transaction which they seek to impeach. 

This section enacts, that if any bankrupt, being at the time insolvent {x\ 
shall (except upon the marriage of any of his children, or for some valuable 
consideration), have conveyed, assigned, or transferred to any of his children, 
or any other person, any hereditaments, offices, fees, annuities, leases, goods 
or chattels, or hav^ delivered or made over to any such person any bills^ 
bonds, notes, or other securities, or have transferred his debts to any other 
person or persons, or into any other person's name, the commissioners shall 
have power to sell and dispose of the same as aforesaid ; and every such sale 
shall be valid against the bankrupt, and such children and persons as afore- 
said, and against all persons claiming under him. 

By 2 & d Vict., c. 29, all contracts made btmA fide with any bankrupt 
previous to the date and issuing any fiat against him, are valid, provided 
the party had no notice of any prior act of bankruptcy. 

The defence consists, either, Ist, in the denial of the plaintiffs' right to sue Action by 
in the character of assignees (y), or supposing them to be assignees, 2dly, of ***|!Sn«<*». 
their particular cause of action against the defendant. Under the first head 
the defendant may, it ]ias been seen in some instances, dispute and controvert 
all the facts upon which the bankruptcy is attempted to be supported (2:). 
Under the second he may not only controvert the claim of the plaintiff's 
resting on the proofs already announced (a), as by showing that the bank- 
rupt himself could not have supported the action, (in cases where the 
assignees affirm the acts of the bankrupt, and claim solely through his 
merits,) but he may also show, that in point of law the interest which the 
bankrupt had did not pass to the assignees ; or he may rely upon a set-off, 
or discharge by the assignees. 



(:r) Componnding with creditors is evi- 
dence of insolvency. Reader v. KnatehbtM, 
5 T. R. 318. Bot ineolvenq/ means a gene- 
ral inability to answer engagements. And 
in order to inTslidate a payment made by 
the bankrupt two months before the com- 
mission, it has been held to be insafficient 
to show that the creditor has renewed bills 
for the debtor, in consequence of the inabi- 
lity of the latter to provide for them. 
1 Camp. 498. Notice to a creditor that 
there has been a meeting of the baolcrapfs 
creditors, and that tlie state of his aifairs 
was sucli that the demands of creditors 
coald not be paid, except by instalments, 
althongh the creditor was assured by the 
bankmpt's agent that tiiey would come 
round, was heid to be notice of insolvency, 
(under the stat 46 G. 8, c. 185, s. 1,) so as 
todefeata subsequent payment by the bank- 
rupt to the creditor. Bayly v. Sehqfield^ 
1 M. & 8. 380. The plaintiffs to prove an 
execution creditor's knowledge of the tra- 
der^ insolvency, proved a letter written 
by his attorney to the attorney of the 
execution creditor, stating^ that lie had 



been embarrassed by the failure of another 
house, and strongly pressing for time, and 
offering to pay by instalments; it was 
held tl^t it did not amount to the kind of 
insolvency meant by tlie statute, which 
l)eing a term used in connexion with that of 
bankruptcy was not to be considered as used 
in its common acceptation, bat as mean- 
ing insolvency of so decided and unequivo- 
cal a cliaracter as to be immediately fol- 
lowed by bankruptcy or stopping payment, 
as a necessary consequence. AhraJuxm v. 
George, 11 Price, 428. 

(y) In trover by assignees, a plea deny- 
ing that the plaintiilb were assignees, puts 
in issue the petitioning creditor's debt and 
act of bankruptcy. JSuckton t. Prott, 1 
Perr. k D. 102. And see Butler r, 
Hobmn, 4 Bing. N. C. 290. 

(z) Except as to facts proved by the de- 
positions, where they are given in evidence 
under the stat. 6 G. 4, c. 16, s. 92, for they 
are made conclusive eridence of tliose 
facts. 

(o) Vide Aipra, 121. 



174 bankruptcy: — proofs in actions by assignees. 



Non- 
joinder. 



Prior act 

ofbaok- 

raptcy. 



Petitioning 

creditor's 

debt 



In the first place, he may controvert the title of the plaintiffs t6 sue in 
the character of assignees (b). He may object that there is another assignee 
still living, who ought to have been joined (c), for this is a ground of 
nonsuit. 

In an action by the assignees under a joint commission against A, and B., 
against the sheriff for levying an execution on the goods of A, and B., it 
appeared that the levy was made after the bankruptcy of il., but before that 
of B. ; and it was held that the action was not maintainable, since, although 
the bankruptcy of A. was a severance of the joint-tenancy, yet imder a joint 
commission they could not sue for the separate property of one {d)» 

Although no notice has been given of intention to dispute the commission, 
it may be shown that it is void, as by reason of infancy (e). At one time a 
defendant might disprove the title of the assignees by proof of an act of 
bankruptcy committed anterior to the petitioning creditor's debt, and of a 
sufBicient debt to have supported a commission (/), although neither the 
bankrupt himself, nor any one claiming by assignment from him, could have 
sustained such an objection (^). But by the stat. 6 G. 4» c. 16, s. 19, no com- 
mission shall be deemed invalid by reason of any act or acts of bankruptcy 
prior to the debt or debts of the petitioning creditor or creditors, or any of 
them, provided there be a sufficient act of bankruptcy subsequent to such 
debt or debts (A). 

Where the bankrupt was uncertificated under a former commission, and 
it was proved that all his effects were assigned under it ; held, that in an 
action of trover by the subsequ^it assignees, the defendant might avail 
himself of the former commission, without notice to dispute having been 
given ; for although the 94th section dispenses with proof of the facts enu- 
merated, yet the conunission must be put in evidence, and its validity in 
law is still open to examination (t). 

Payment of money to the petitioning creditor after the suing out of the 
commission renders the commission supersedable, but not ipso facto void (k). 
The defendant may impeach the petitioning creditor's debt, as by showing 
that it was due to the petitioning creditor and another, jointly, the latter not 
concurring in the petition (/) ; or that the petitioning creditors could not have 
sued upon the bill accepted by the trader upon which the debt is claimed, 
one of them having engaged to provide for the bill when due (m) ; that one 



(b) An assignment to assignees after an 
action, well commenced by the provisional 
assignee, does not defeat die action. Pag^ 
V. Bauer, 4 B. & A. 846. 

(e) Snelgrcve v. Huntf 2 Starkie's C. 
424; 1 Chitty's R. 71. Note that tlie 
action was in assurapsit. 

{d) Hogg v. Bridget, 2 Moore, 122. See 
Stonehouse and another v. Be SUva, 
3 Camp. 399 ; and 2 Starkie's C. 1 7. Note, 
they were not the goods of A. and B. as 
alleged. 

(0) Baton V. Hodges, 9 Bing.365. 

(/) JR. V. Bulloek, 1 Taunt 72. 88. 
14 Yes. 07. 462. Beardmore v. Sfune, 
1 N. R. 268. But an act of bankruptcy 
alone was insufficient. Parker v. Man" 
ning, 2 Esp. 698 ; 4 Esp. 694; 9 Bast, 
21. 



(g) Mercer v. Wise, 3 Esp. 219 ; 1 Taunt. 
80. 86. 94. Bonnovan v. Btff, 9 East, 24. 
See Boe v. BotUcott, 2 Esp. C. 695, Eyre, 
C. J. Bryant v. Withers, 2 M. & S. 123. 

(h) The corresponding clause in the stat. 
46 O. 8, c. 135, s. 6, contains an exception 
which is omitted in the late Act, viz. '' if 
•neh petitioning creditor liad not any notice 
of such act of bankruptcy at the time wlien 
the debt was contracted." 

(i) PhiUips V. Hopusood, 1 B. & Ad. 
619. 

(A) Garratt v. TheophUus Biddulph, 
4 Esp. C. 104. 

(/) Brickland v. Nevosom, 1 Camp. 474. 
1 Taunt 477. 

(m) Richmond v. Heapy, 1 Starkie^sC. 
102. 



PROOFS IN DBFBNCE. 175 

of the petitioning creditors is resident and carrying on trade in an enemy's 
country (n). 

The petitioning creditor cannot in an action against him by the assignees 
dispute the amount of the petitioning creditor's debt (o). But it seems that 
another defendant may show that the debt was merely colourable and col- 
lusire, although the bankrupt himself might have been estopped by the 
security which he had giyen from disputing it (p), 

A defendant who was not privy to the transaction may show that the act Act of 
of bankruptcy which is relied upon was a concerted one (q)» But neither bank- 
the bankrupt, nor any one privy to the concert, can insist upon such an '^P^X* 
objection (r). It is no objection that the commission fiat or adjudication 
was concerted (i). 

Declarations by the bankrupt before his bankruptcy, with a view to a 
fraudulent commission, are admissible in evidence to show collusion between 
the bankrupt and the petitioning creditor {t). 

2dly. The defendant may show that in point of law the right of action iV) impeach 
did not pass to the assignees. Whether a particular interest does' or does the cauBe 
not pass to the assignees, is of course a pure question of law ; but it is in- ^^ (action, 
cumbent on the defendant to give in evidence such facts as raise the question 
of law, where the plaintiff has made out tkprimA facie case(M). 



(n) M'CoimeU v. HeetoTf 3 B. & P. 
113. So, tembU, that ooe of them is an 
infiut. JBx parte Morton^ 1 Buck's B. C. 
42. JErjMi^«i3arroio,dVes.554. 
(o) Harmer ▼. DavUy \ Moore, 300. 
(p) See Christian's B. L.442, 3d edit 
{q) See Lord Mansfield's observations, 
in Hwper v. SmUk^ 1 BL 441; and see 
Bain\ford v. Baron^ 2 T. R. 695, n. Stewart 
▼. Biekmany 1 Esp. C. 108. Field v. 
BOlamyy B. N. P. 30. Cowley v. Hop' 
iUfi«,Co.B.L.84.95. Ex parte Bourne^ 
16 Yes. 145. B» parte EdmundiaH,l\e^ 
30S. BatseeBrom/^y v.Jlftt9Miee,B. N. P. 
aO; JBr parte MUner, I Buck's B. C. 104. 
Seeme, where the act of bankruptcy consists 
in a dedaratiott of insolvency, under the 
•tat. 6 G. 4, c 10. See sec. 7. 

(r) Mdbertt and others v. Teatdale, 
Peake, 27; B. N. P. 39, 40. Cowley v. 
HopkbUy Co. B. L. 84. 95. JSx parte 
Bawrmej 16 Yes. 145. See also Wilton v. 
Poulion, S Str. 859; BUhn v. Hyde ^ 
MUekellj 1 Atk. 126; Tappenden y. 
Bur)0e$iy4Bi»tf236, 

(«) lie 2 WiU. 4, c 56, B. 42. Seealso 
Shaw V. WiUiamSy 1 Ry. k M. C. 19. 
JBx parte Binmer^ I Madd. 250; 1 Mont 
St M. 488; 1 Rose, 87. The stat does 
not make a coneerted act good, to sustabi 
aflat. As where assignment is made for 
the benefit of all creditors, to which the 
petitioning creditor is a party. Marshall 
V. Barkwarthf 4 B. & C. 508. A creditor 
sisenting to an act of bankruptcy, cannot 
avail himself of it to support a flat, Mx 
parte HaU^ 8 Deacon, B. G. 405. A pe- 
titiooing creditor, party to a deed of as» 
s%niaent fiv the benefit of creditors, can- 
not set up the deed as an act of bank- 
niptcy, Bunny ex parte, 3 Deoc. (b. c.) 
1I9*. Bat it is no defence tosliow that the 



commission issued by the desire and at the 
request of the bankrupt. Shaw v. VFi2- 
liams, M. & M. 19. This was otherwise 
before the Stat JEx parteOrant,lC.&Lj, 
17. 

(t) Thomson v. Bridges, 2 Moore, 376. 
But declarations by the petitioniug creditor 
after suing out the commission, that the 
commission was concerted, were held to 
be inadmissible. Harwood v. Keys, 1 Mo. 
4:R.204. 

(tt) Bills of exchange obtained by fiUse 
pretences do not pass {Gladstone v. Had- 
wen, 1 M. & S. 517) ; nor trust property 
( Webster v. SeaUs, 25 0. 3, B. R. Winch 
v. Keeley, 1 T. R. 619); nor property 
equitably assigned before the bankruptcy. 
Tibbits V. George, 5 Ad. dc £1L 107. 
Caroalho v. Bum, 4 B. & Ad. 382. And 
see, as to cases under the Insolvent Act, 
Best V. Angles, 2 C. & M. 394; 4 Tyr. 
256. A. agrees to assign to B, certain 
specific goods by way of security for money 
advanced by B, for the purchase of them, 
and afterwards assigns them under cir- 
cumstances which would have made the 
assignment void under the Insolvent Act ; 
the assignees of A, under the Insolvent 
Act are not entitled to the goods, although 
it would be otherwise if the goods were 
not ascertained at the time of the agree- 
ment. Hfogg V. Baker, 3 M. &; W. 195. 
Nor the property of tlie bankrupt's wife to 
her separate use (Vandemahker v. 2>es- 
borough, 2 Vernon 95). Aliter, where stock 
stands in the name of a married woman 
{Pringle v, Hodgson, 3 Yes. 617) ; and the 
wife can have no assistance in equity where 
there is no trust created for her benefit 
(Ibid.-, and see Christian's B. L. 483, 2d 
edit) The assignment passes future per- 
sonal property {Kitchen v. Bartsch, 7 East, 



176 



BANKRUPTCY. — ACTIONS BY ASSIGNEES. 



The asBignees being only entitled deiiTatively from or through the bank<* 
rupt, as he coald not have maintained an action against the East India 



53) ; hut a fresh assignment of real property 
was held to be necessary (Ex partePnntdr 
foot, 1 Atk. 253). The assignment passes 
coDtin^irent interests (Higden v. WiUianu, 
3 P. Wms. 132) ; but not a possibiiity of 
taking by descent as heir (Moth v. Fromef 
Amb. 394. Carleton v. Leighton, 3 Mer. 
667). Particular proceedings are made 
for the tranrfer of copyhold property 
by the stat. 2 G. 4, c. 16, s. 86. All tale- 
able offices pass by assignment (1 Atk. 
210); sectu, of offices which concern the 
administration of justice, 5 & 6 Ed. 6, c. 
16. See Ex parte Butler, 1 Atk. 210. 215. 
Amb. 73. 89. 112. Cooke's B. L. 283). So 
an officer's pay does not pass. Lidderdale 
▼. Ihtke of Montrose, 4 T. R. 248. An 
advowson passes, but the bankrupt must 
present, if a lapse occur before conveyance 
to a purchaser. See Charman t. CharmaUf 
14 Yes. 580. The assignment passes the 
bankrupt's right to recover what he has 
paid as a gaming debt. Brandon v. Pate, 
2 H. B. 308. A lease, notwithstanding a 
covenant not to assign without consent. 
Philpot V. Home, 2 Atk. 219 ; Amb. 480. 
Doe V. Carter, 8 T. R. 7. Aliter, where 
there is a proviso for re-entry in case of the 
lessee's bankruptcy. Roe v. Galliers, 2 
T. R. 133. An annuity demised to the bank- 
rupt, and payable to him only, ceases upon 
the assignment. Dommett v. Bec^ford, 
6T. R 084; 3yes. 150. A debt due to the 
wife dum sola passes (MUes v. Wiiliatns, 

1 P. Wms. 249) ; so does a debt on mort- 
gage (Bosvil V. Brandon, 1 P. Wms. 459) ; 
but the wife's right of survivorship is good 
against the assignees, if the husband dies 
before they obtain possession. Mitford v. 
Mitford, 9 Yes. 87. As to the wife's re- 
mainder in chattel interest, see Doe v. 
Steward, 1 Ad. & Ell. 300. Goods de- 
livered to the bankrupt on a contract of 
sale pass to the assignees, although the 
bankrupt intended to defraud the vendor. 
Milujard v. Forbes, 4 Esp. C. 171 ; but 
see Gladstone v. Hadwen, 1 M. & S. 517. 
So does the interest of a tenant for life in 
his redemption of the land-tax. Bmiey v. 
Orey, 3 Mer. App. 702. Money advanced 
to the bankrupt, being in prison (the act 
of bankruptcy), for the special purpose of 
settling with his creditors, which object 
fails, may be repaid by the bankrupt to the 
party advancing the money, and does not 
pass to the assignees. Toovey v. Milne, 

2 B. & A. 683. Where the defendant 
delivered a cheque on his banker to two 
persons, for a specific purpose, and they 
returned it to him after their bankruptcy, 
not having used it ; held that the assignees 
were not entitled to recover it in trover. 
Moore v. Barthrop, 1 B. & C. 5. Money 
received by an overseer of the poor, and set 
upart from the rest of his property, does 
not pass to the assignees. R. v. Eggington, 



1 T. & R. 370. In general, the product of 
a substitate for the original follows the 
thing itself, as long as it can be ascertained 
to be such, and the right only ceases when 
the means of ascertainment fail, which is 
the case where the subject is turned into 
money, and mixed and confounded in a 
general mass of the same description . Per 
Lord Ellenborough, Taylor v. Plumer, 
3 M. & S. 563. See Scott v. Surman, 
Willes, 400 ; WhUcomb v. Jacob, Salk. 
650; Copeman v. Gallant, 1 P. Wms. 
320. A draft is intmsted to a broker to 
buy exchequer bills; the broker receives 
the money and misapplies it, by purchasing 
American stock and bullion, and absconds, 
but is apprehended. The principal, who 
receives the American stock and bullion, is 
not amenable to the assignees under a com- 
mission against the broker, on an act of 
bankruptcy committed on the day on which 
he misapplied the money. Taylor y. 
Plumer, S M. & S. 563. Property passes 
to the assignees when received by a fiustor 
after the act of bankruptcy, although pur- 
chased with monies advanoi^ by the factor 
for the purpose of purchasing the goods to 
be sold by him to repay hinuelf out of the 
proceeds. CopeUmd v. Stein, 8 T. R. 199 ; 
and see Carter v. Barclay, 3 Starkie's C. 
43. By the stat. 6 Q. 4, c. 16, s. 63, the 
commissioners are to assign all the present 
and future personal estate of such bankrupt, 
wheresoever, &c. and all property which he 
may purchase, or which may revert, de- 
scend, be devised or bequeathed, or come to 
him, before he shall have obtained his cer- 
tificate ; and the commissioners shall also 
assign, as aforesaid, all debts due, or to be 
due to the bankrupt, wheresoever, Ac to 
such assignees; and after such assignmeot, 
neither the bankrupt nor any person claim- 
ing through or under him shall liave power 
to recover the same, nor to make any release 
or discharge thereof; neither shall the 
same be attached, &c^ but such assignees 
shall have like remedy to recover the same 
in their own names as the bankrupt him- 
self might have had if he had not been 
adjudged bankrupt. A valid appropriation 
or equitable assignment of a trader's funds is 
not revoked by his bankruptcy. Hutekinmn 
V. Heyworth, 9 Ad. & EU. 375. A money 
bond assigned by the trader to tecurs a debt 
to a larger amount, does not pass to the 
assignees. Dangerfidd v. Thomas, 9 Ad. 
& £11. 202. Where a sum was bequeathed, 
subject to forfeiture if the legatee should 
'* mortgage, charge, sell, assign, or incnn»- 
ber ;*' held, that bankruptcy being an act of 
law, and not a voluntary assignment by the 
legatee, which was alone contemplated by 
the will, the assignees were entitled. WhU-- 
field V. Pri£kett, 2 Keene, 608. Where a 
grantor settled estates on two in succession 
for life, on condition that the party entitled 



PBOOF8 IN DBPBNCS: — BET^OFF. 



177 



Company for the arrears of his pension, his assi^ees cannot (jr). By bring- St't-off. 
iDg an action in the form ex contraetUy where it might have been laid in 
torty they affirm the act of the bankrupt, and the defendant is entitled to 
the benefit of a set-off (y). For the assignees cannot affirm the same trans- 
action in part, and disaffirm it for the rest. And therefore, where the bank- 
rupt, after a secret act of bankruptcy, had transactions with the defendants, 
tnd the assignees brought an aetion of asmmptU to recover what the bank- 
rapt had paid ; Lord Hardwieke, C. held, that the defendants were entitled 
to set-off money which they had paid for the bankrupt (z) ; for by bringing 
to action of OBmanprnt the assignees had elected to consider the bankrupt as 
their fkctor, and affirmed his contract, and having done so, must take him 
M their factor in all things done fairly and without deceit. 

Upon an action by the assignees, the defendant was before, and is now, 
onder the stat. 6 0. 4, c. 16, s. 50, where there have been mutual credits 
between the parties, entitled to set off a debt due from the bankrupt to him 
before the bankruptcy, without giving any notice of set-off; and he may 
either plead the set-off, or give it in evidence under the general issue (a). 

By the stat. 6 G. 4, c. 16, s. 60, where there has been mutual {h) credit Blntual 
given by the bankrupt and any other person, or where there are mutual credit, 
debts (c) between the bankrupt and any other person, the commissioners 



for the time befog shoald reside in the 
Bandoo-honse and bear the name and 
anas of the grantor, the latter beeomlng 
bankrupt; held, that having a vested right 
hireniaiBder In the property at the thne of 
bis bankmptey, it paased, imder the bar- 
gaia aod sate, to Ida aaaignees, although 
liable to be defeated by the defonlt of the 
party to falfll the condition. Ex parte 
Qoldneyy 8 Deaooo, B. C. 670; 1 Mont. 
k Ch. 75. 

ir) Oibmm v. JBait India Company^ 6 
^N.C.262. 

(y) Smith ▼. Hodgmm^ 4 T. R. SlI. 
la ammiptU by anigneea on an agree- 
ment by the banicmpt for the aale of 
goods, to be paid for by an acceptance, 
•lleghig the rrftisal to accept, and damage 
by loss of the benefit of anch acceptance, 
and iigiuy to his eatate thereby; held, 
that the damage reaohlng in pecuniary 
loM only, it did not amount to such an 
altegatioo of nnliquidated damages as to 
preclude the debtor's right of «et-off. 
Groom v. Weatj 1 Perr. & D. 19. And aee 
Gibsm T. BeU, 1 Bing. N. C. 743. 

(:) Bi/lon V. Hyde^Mitehelly^ Atk.iaO. 

(a) Oroce v. DuboU, 1 T. R. 112. 
J^yall T. LarUtiy 1 Wils. 155; see also 
Sdmeadt v. Newman, 1 B. & C. 418, as 
to matual seeuritiea held by country lin- 
kers. And see, aa to the advance of 
money on the atrength of consignments, 
£nnm ▼. Cato, 5 B. & A. 861 ; Ex parte 
I>eere, 1 A&. 2S8. As to mutual accounts 
between an ineorance broker and nnder- 
writer, see 19 O. 8, c. 32. Graham v. 
JiwteU, 5 H. & 8. 496. 

{b) These worda are not confined to 
pecuniary demands, but extend to confi- 
dential deliveriea of goods, lilcely, under 
the cireamstanceff) to become productive. 

£anmi v. Cato, 5 B. & A. 861. So if 

VOL. II. 



bankers disconst billa yet running, and 
gire credit to the banicmpt, in ills account 
with them, for the amonnt minus the dia- 
connt. Arbouin v. Trittony 1 Holt's C. 
408. Seeuif if the trader deposit a bill 
with anotlier for a specific purpose, aa to 
raise money upon it; in such caae tlie 
assignees, after tendering the amount ad- 
vanced on the bill, are entitled to recover 
in trover. Key v. Flinty 1 Moore, 451 ; 
Buchanan v. Ffndlay, 9 B. & C. 738. 
This dense extends to mutnal dealings up 
to the time of the commierion, and there- 
fore extends the protection oif the stat. 
46 O. 3, e. 135, a. 3. See Kinder v. But- 
tertoorthy 6 B. 4c C. 42; Tamplin v. Dlg^ 
{^ii«,2Camp.312. A mutual credit may be 
constituted although the parties did not 
mean particularly to trust each other, as 
where A, accepts a bill which gets into the 
hands of B., who buys goods of ^ . Hankey 
V. Smithy 3 T. R. 507. A partner in the 
houae ofM. jr Co. drew bills for the accom- 
modation of it., a customer with the firm, 
who discount the bill for A, and indorse it 
\oN,ff Co, The bill becoming due after the 
bankruptcy of AT. j* Co., N, j* Co, pay them- 
selves out of the funds of M, jr Co. in their 
hands. The assignees of M, \ Co, sue A, ; 
the latter is entitled to set on a debt from 
M, i Co. Bolland v. Nath, 8 B. k. C. 105. 

(c) The debt due from the creditor to 
the bankrupt, or the credit given by the 
latter to the bankrupt, must have existed 
at the time of the bfmkmptcv. See Han- 
key ▼. Smithy 3 T. B. 507 (n). A . bought 
of B, goods to the amonnt of 430 1., at six 
months' credit, aod afterwards to the 
amount of 230/. at the like credit, and at 
the expiration of the first six montlis gave 
B. two bills of exchange on third persons 
for — /., on an undertaking by the latter to 
pay the balance when the bills were paid. 

N 



Mutual 
credit. 



178 bankruptcy: — actions by assignees, &c. 

shall state the account between them, and one debt or demand (d) may be 
set against another, notwithstanding any prior act of bankruptcy committed 
by such bankrupt before the credit given to or the debt contracted by hxm^ 
and what shall appear due on either side on the balance of such account, 
and no more, shall be claimed or paid on either side respectively, and every 
debt or demand hereby made proveable against the estate of the bankrupt, 
may also be set off in manner aforesaid against such estate («) ; provided that 
the person claiming the benefit of such set-off had not, when such credit was 
given, notice (/) of an act of bankruptcy by such bankrupt committed. 

The defendant, before this, must have showed that the debt which he pro- 
posed to set off, accrued before the act of bankruptcy {g) ; he could not set 
off cash notes payable to J, S. or bearer, although they were dated before 
the bankruptcy, without showing that they came to his hands before the 
bankruptcy {h). So where the defendant insisted on acceptances of the 
bankrupt in his hands, by way of setoff to an action by the assignees, on 
his own acceptance, he was bound to show either that his obligation to pay 
the bills subsisted before the bankruptcy, or that the bills or^^nated in 
mutual credit (t). 



A, ha^iBg become bankrapt before the 
credit for the second parcel expired, it was 
held that B. might set off the 170/. 
against the price of the second parcel. 
AtHnson v. Elliott, 7 T. R. 378. See 
Key v. Flint, 8 Taunt 21. 

(d) 'Notwithstanding these terms, a 
more esEtensive sense is given to the terras 
mutual credit, in the earlier part of the 
clause. See Eden on the Bankruptcy 
Laws, 194. Ex parte Marshall, 1 Mont 
& Avr. 189. 

(e) And therefore debts may now be set 
off which could not formerly have been 
set off as depending upon a contingency. 
See Eden B. L. 803. The terms are more 
extensive tlian mutual debts. But they 
are confined to such credits as must in 
their nature terminate in debts. Rase v. 
Hart, 8 Taunt 400. Base v. Sinu, 1 B. 
& Ad. 521. Easum v. Cato, 5 B. & A. 
861. Young v. Bank of England, 1 Deac. 
Bankruptcy Cases, 622. A mere gua- 
rantee against contingent damages, which 
cannot terminate in a debt, is not the sub- 
ject of mutual credit Sampson v. Bur^ 
ton, 2 B. & B. 80. Where a creditor em- 
ployed his debtor to repair his carriage 
on a contract to pay ready money for the 
repairs, it was held that the assignees of 
the latter had a lien till payment Clarke 
V. Fell, 4 B. & Ad. 404. 

{f) As to the construction of these 
words, vide supra, 172. 

(jf) Marsh v. Chambers, Str. 1234. 

(A) Dickson v. Evans, 6 T. R. 57. 
Lawrence, J. observed, that if the notes 
had been payable to the defendant himself, 
he should have thought it reasonable evi- 
dence that they came into his hands at the 
time they bore date. Where to an ac- 
tion by the assignees of a bankrupt, for 
a debt due to the bankrupt's estate, the 
defendant set off notes in his possession 
issued by the bankrupt before the bank- 



ruptcy ; proof that notes to the amount 
of the set-off came into his hands three 
or four weeks before the bankruptcy, was 
held sufilcient evidence fix>m which the 
jury might infer that he was hi posses- 
sion of them at the time of the bank- 
ruptcy, without identifying them with the 
notes produced. Moore v. Wright, 6 
Taunt 517. Under the above clause, a 
party who has industriously obtained notes 
of bankers after they had stopped pay- 
ment, but who had no notice of any aet 
of bankruptcy committed, is entitled to set 
them off. Hawkins v. Whitten, 10 B. & 
C. 217. See also Dickson v. Cass, 1 B. & 
Ad. 349. Bills were drawn by one partner 
and accepted by the defendant, and dis- 
counted by the firm for his convenience, 
having money in their hands of his at the 
time ; held, that between the parties it 
constituted a mutual credit, and that the 
firm could not, by paying away the bUls, 
which were afterwards returned to them, 
put an end to that mutual credit, so as to 
deprive the defendant of his right to set off 
any debt due from the firm to him against 
the sum claimed by them or their assig- 
nees from him, as such acceptor. Bolland 
V. Nash, 8 B. & C. 105. The defendant, 
in consideration of the bankrupt's deliver- 
ing to him a bill accepted by him, promised 
to deliver to the bankrupt a bill accepted 
by E., and indorsed by the defendant, and 
the latter afterwards proved the former bill 
under the commission, but refused to in- 
dorse the bill of E, ; held, that it did not 
constitute a case of mutual credit between 
the bankrupt and defendant, but was a 
cause of action, from the non-performance 
of a contract, for which the assignees might 
sue. Bose v. Sims, 1 B. & Ad. 521. 

(0 Oughterlony v. Easterhy, 4 Tsnnt 
888. Southwood v. Taylor, 1 B. & A. 
471. And see Sheldon v. Bothschild, 
2 Moore, 43. The bankrupt accepted 



ACTIONS AGAINST ASSIGNEES. 



179 



Where B. agreed to indemnify A. his surety, by allowing him to retain Mutoal 
out of any debt which he should owe to B., in respect of mutual deciings in <^^it. * 
trade, as much as he should pay on the bond, and B. sold goods to A., and 
after BJb bankruptcy A, paid more than the price of the goods on the bond, 
it was held that the assignees could not recoyer for the goods, there being 
nothing due to the bankrupt's estate on the original contract (A), 

Where B^ a broker, was intrusted by A,, a merchant, with policies on 
goods, effected by B, for A,, and after AJa bankruptcy B. received for losses 
under such policies ; and A, had before his bankruptcy employed B. to sell 
goods for him as a broker, and B. had advanced money to A, upon a pledge 
of such goods and upon A,'s general credit ; it was held that this was a 
mutual credit, and that B, might retain the sum received for the loss, in 
liquidation of his advances, and of the money due for premiums (/). The 
defendant having accepted bills for the accommodation of a trader, received 
money £rom him after an act of bankruptcy, but before the commission, to 
take up the bills which became due after the commission, and were then 
paid by the defendant : held that the defendant was bound to refund ; for 
the statute is confined to mutual debts at any time before such person 
became bankrupt, and it was not the money of the bankrupt, but of the 
assignees (m). It is not sufficient for the defendant to show that the sub- 
ject of his set-off was allowed as a debt by the commissioners (n). The 
defendant cannot, in an action by the assignees, set off a debt on a bill 
drawn by the bankrupt, of which he is the holder, after having set it off 
against a prior indorser (0). The debt must be due in the same right (;i). 

Where a party struck a docket, and afterwards became a trustee under 
an assignment of all the bankrupt's property in trust for creditors, and after 
he had incurred some expenses in executing the trust, another creditor 
issued a fiat, and the assignee seized the property ; held, that the assign- 
ment being of itself notice of an act of bankruptcy, he could acquire no 
lien on the property as against the assignees (q). 

A discharge by one assignee, on receiving monies due to the estate, will Discharge, 
bind the rest (r) ; but a discharge by one assignee will not be effectual where 
the others have expressly dissented («). So a release executed by one 
assignee in the presence of another will bind both (t) : but if the co-assignee 
be absent, an express authority by him under seal must be proved (u). 

II. Actions agcunat Commissioners, Assignees, Sfc.-^ln an action against a Actions 
ommmssioner the plaintiff must prove notice of action, according to the JJ^^^^ 
Stat. 6 Geo. 4, c. M, s. 41 (x). And any plaintiff who sues in respect of any- &c. 



a bill for 488 h for the accommodation of 
A., bnt becoming indebted to A» for part, 
drew a bill on A. for the balance, and be- 
dune bankrupt. The latter bill was ac- 
cepted and paid by A, without knowledge 
of the intervening bankruptcy ; and it was 
held to be a case of mutual credit, although 
the principal sum was not due at the time 
of the bankruptcy ; it was also held, that 
an action for money had and^ received did 
not lie against the purchaser of the bill, to 
whom il.had paid the amount. 

(*) I>ohs<m ▼. Lockhart, 5 T. R. 133. 

(0 OlUfe y. Smith, 5 Taunt. 56. And 
see Arbauin v. Tritton, Holt, 408. 

(m) Tamplin v. Dig^ins, 2 Camp. 312. 

(n) Pirie ▼. Menruftt,9 Camp. 279. 

(0) Beteher ▼. Uoyd, 10 Bing. 310. 



(p) See tit. Sbt-opp. Fair v. dPIver, 
16 East, (B. c.) ISO. 

(q) Ex parte Sioinhume, 3 Deac. 396; 
and 1 Mont. & Ch. 119. 

(r) Smith v. Jameton, 1 Esp. C. 1 14. 
Contra, Carr v. Bead, 3 Atk. 095. 

(s) Bristoio and others v. JSattman, 
1 Esp. C. 172, where one assignee had 
taken 20 L in discharge of various sums 
embezzled by defendant, against the con- 
sent of a co-assignee. 

(0 Waiianu v. WaUby, 4 Esp. C. 226. 
Lord Lovelaces Case, W. Jones, 208. 
Ball V. DunstervUle, 4 T. R. 813. 

(m) 4 T. R. 313. Harrison v. Jackton, 
7 T. R. 207. 

(x) Which enacts, that no writ shall be 
sued out against, nor copy of any process 

N 2 



180 BANRRUPTCT :— ACTIOVS AOAINST AS8lGl«BB8y &C. 

 

things done in pursuance of the stat. 6 G. 4, c. 16, muAt (l)y sec. 44), show 
that hk action was commenced within three calendar months next after the 
fact committed. In order to compel the defendant to prove the requisites 
of bankruptcy, the plaintiff must prove notice of his intention to dispute 
them under the stat. 6 G. 4, c. 16, s. 90 (y). 

Evidence that the commissioners made out their warrant of commitment 
without showing any actual restraint, in consequence of such warrant, the 
party being previously, and still remaining, in custody for another cause, 
is not sufficient to support an action of imprisonment against them (r). 

Where the assignees authorize the bankrupt to carry on the business for 
the benefit of creditors, they are liable for goods suppUed to him, although 
ordered in his own name (a), and to pay him for his trouble. Where they 
enter and keep possession of the premises, although for the purpose of dis- 
posing of the bankrupt's estate, they become liable on the covenants (6). 

Where a bankrupt had a lease of premises, and also a reversionary inte- 
rest in them, and the assignees executed an assignment of all the bankrupt's 
estate and reversionary interest, it was held that they must be taken to have 
assigned the lease, and consequently to have accepted it (c). 

Where premises, with fixtures, were mortgaged, but the mortgagor con- 
tinued in possession, and, becoming bankrupt, his assignees removed the 
fixtures ; it was held, that the mortgagee, as against the defendants as 
strangers, was entitled to consider the mortgagor as his tenant at will, and 
maintain an action for the injury to his reversionary interest ; and also. 



served on any commissioner, for anything 
by him done as snch commissioner, unless 
notice in writing of such intended writ or 
process shall have been delivered to him, 
or left at his usual place of abode, by the 
attorney or agent for the party intending 
to sue or cause the same to be sued out or 
served, at least one calendar month before 
the suing out or serving tlie same; and 
«nch notice shall set forth the cause of 
action which snch party has or claims to 
have, &c., and on the back of snch notice 
shall be indorsed the name of such attorney 
or agent, togetherwith the placeofhis abode. 

Sec. 43 enacts, that no such plaintiff 
shall recover any verdict against such com- 
missioner, in any case where the action 
shall be grounded on any act of the 
defendant as commissioner, unless it is 
proved, upon the trial of such action, that 
snch notice was given, as aforesaid; but in 
defiiult thereof, such commissioner shall 
.recover a verdict and costs, as hereinafter 
mentioned ; and no evidence shall be per- 
mitted to be given by the plaintiff on the 
trial of any such action, of any cause of 
action, except such as is contained in the 
notice. 

Sec. 43 enacts, that every such com- 
missiooer may, at any time within one 
calendar month after snch notice, tender 
amends to the party complaining, or to his 
. agent or attorney ; and if the same is not 
accepted, may pl^ such tender in bar to 
any action brought against him, grounded 
on snch writ or process, together with the 
plea of not guilty, and any other plea, with 
leave of the court ; and if, upon issue join* 
ed thereon, the Jury shall find the amends 



so tendered to have been snfBcient, they 
sliall give a verdict for the defendant ; and 
if the plaintiff shall become nonsuit, or 
shall discontinue his action, or if judgment 
shall be given for such defendant upon d^ 
murrer, such commissioner shall be entitled 
to the like costs as he would have been 
entitled to in case he had pleaded the ge- 
neral issue only; and if, upon issue so 
joined, the jury shall find that no amends 
were tendered, or that the same were not 
sufficient, and also against the defendant, 
on snch other plea or pleas, they shall give 
a verdict for the plaintiff, and such da- 
mages as they shall think proper, which 
he sliall recover, together with costs of 
uit : provided that, if any such commis- 
sioner shall neglect to tender any amends, 
or shall have tendered insufficient amends 
before the action brought, he may, by leave 
of the court where such action shall de- 
pend, at any time before issue Joined, pay 
into court such sum of money as he shall 
tlilnk fit, whereupon such proceedings shall 
be had in court as in other actions where the 
defendant is allowed to pay money into court. 

(y) Supraf&O. 

\z) Crowley v^Impey, 2 Starkie's C. 261. 

(a) Kinder v. Howarth, 2 Starkie's G. 
854. 

(6) In order to protect themselves, they 
should enter with a protest, that it is not 
for the purpose of possessing tliemselvcs of 
the premises as assignees. Hanson v. 
Stevenson, 1 B. & A. 303. See Turner v. 
Richardson, 7 East, 335; Wheeler v. 
Bramahy 3 Camp. 340. 

(e) Page v, Oodden, 2 Starkic*s C. 309. 
See tit. Coy R NX NT. 



DSFBKCB BY ASSIGNEES. 



181 



that having the same right to the fixtures as his tenant, he might main- 
tain trover for the fixtures so severed, and that they did not pass to the 
assignees as goods within the bankrupt's order and disposition (d). 

Defence by CommisgUmers, AniffneeSy Sfc. (e). — By the stat. 6 G. 4, c. 16, Defence 
s. 44, conunissioners and others nuiy in all cases justify what they have ^X ^Mig- 
done under the act under the general issue. In default of notice, under °^^^ 
the 90th clause, no evidence need be given of the requisites of bankruptcy (/*). 
Where the action is brought in respect of a commitment of the bankrupt 
or any other under the statute, the whole of the examination of that person 
shall be read and considered, and the defendant shall have the same benefit 
from it as if the whole had been recited in the warrant (^). 

Where the action is brought by the bankrupt (A) to try the question of 
bankruptcy, and due notice has been given according to the stat. 6 G. 4, 
e. 16, 8. 90, the defendants must either prove the different requisites of 
bankruptcy, or some direct or collateral admission by the plaintiff of his 
bankruptcy (t) ; as that he obtained his discharge under a Judge's 



(d) HUehman v. Walton^ 4 H. & W. 
400. And tee Partridge v. Bere, 5 B. & 
Aid. 004. 

(e) Upon an application for payment of 
a dividend against a surviving assignee 
after a great &pee of time, held that tlie 
onus of proving payment lay on the as- 
signee, and that the statute of limitations 
did not attach to a debt once proved nnder 
the commission. JSx parte Healey, 1 D. 
k Ch. 331. 

(/) the power given by the above 
elanae to persons appointed by tlie com- 
ffliBskneis to hreak open any honse, &c. qf 
/Aeteniknipf, and seise npon the body or 
foods of SQch bankrupt, is confined to the 
hoose of the bankrupt, and does not extend 
to those of other persons where such party 
9r property may be ; the 20th sec., giving 
the power to search the houses of third 
persons, requires also the warrant of a Jus* 
tice to be (A>tained by the party appointed 
by the oommissioners ; and therefore, where 
the aniqneee entered the premises of the 
phfaitm to seise goods of the bankrupt, it 
is Dot an act done in pursuance of the stat., 
and the plaintiff is not limited to his ac- 
tion within three months after the act 
committed. Edge^. Parhery 8 B. & C. 097. 

Doing an act *' in pursuance of" a stat., 
is applicable only to cases where the party 
can be considered as (bunding his act upon 
the power given him by the Legislature. 
ilk And see Carruthers v. Payrie, 5 Bing. 
270; Worth v. Budd, 2 B. & Ad. 177. 
The official assignee is not within the pro- 
tection of the 44th clause. KnigfU v. 
Turquant, 2 M. & W. 101. 

In order to justify the commissioners in 
issuing their warrant to apprehend a party 
summoned to attend before them as a wit- 
ness under s. 33 of 6 G. 4, c. 10, there 
should be a reasonable interval between 
the service of tiie summons and the time 
appointed for his attendance, and it is for 
sjury to say wlicther under the circum- 



stances such service be reasonable or not; 
but in order to Justify them in issuing 
their warrant, it is not necessary they 
should have before tliem information on 
oath of the service of the snnunous. Uroo^ 
cock V. Cooper, 8 B. 6c C. 211. 

Where no objection was made by the 
bankrupt to the course of the examination^ 
but he objected to sign it afterwards, it is 
not necessary that the examination should 
be set out in th^ warrant. In re Leak, 3 
YdcJ.46. 

Upon a like application in the court of 
K. B., the Court also held it to be unne- 
cessary to set out the examination, but 
tliat the bankrupt was entitled to be dis- 
charged, the warrant liaving concluded 
that " he should be committed until he 
should sign, and true answer make." B. 
&C.234. 

Where the return to a habeas corpus set 
forth only a part of the warrant, omitting 
the questions which had been put to the 
bankrupt, the Court ordered that the 
gaoler should amend his return, and annex 
the warrant itself, or that a copy thereof, 
or the whole, should be set forth in tlic 
affidavit of the party opposin*^ the dis- 
charge. In re Potoer, 2 Russ. 583. 

(g) By sec. 40. 

{h) When a commission is superseded, 
all acts done under it are void, and an ac- 
tion lies against the assignees for taking 
the goods. Ex parte King, 2 Yes. J. 40. 
Perkins y. Proctor, 2 Wils. 382. Mont B. 
L. 013, n., the titles of purchasers arc de- 
feated. Ibid, 

(i) See tit. AnKissiON, and Cnifton 
y. Poole, 1 B. & Ad. 508. In order to 
prove a bankrupt to have been a trader, 
piX)of of his luiving acknowledged that he 
was in partnership with a trader, and that 
he spoke of jMirtnership property l)eing 
their joint property, is evidence of the fact 
as against him. Parker v. Barber, 1 B. 
& B. U; ] B. Jc A. 508. Shortly before 

.n3 



182 



ACTIONS BY BANKRUPTS. 



Actions by 
abankrapt. 



Actions 
against a 
bankrupt. 
Plea of 
certificate. 



order (A), or solicited votes in the choice of assignees : proof that he surren- 
dered is insufficient, since a surrender is compulsory (i). 

Assignees, under a plea in trover, denying the property in the plaintiffs, 
are entitled to show that the goods were in the order and disposition of the 
bankrupt as the true owner, and that the defendants, as assignees, sold the 
goods (m). 

III. AcHana by and against Bankrupts. — It is no defence, that the debtor 
has notice of the insolvency of the plaintiff, and that he may be afterwards 
called upon by the assignees to pay the debt ; for payments enforced by 
coercion of law are valid against the assignees (n). In general, it seems to 
be no defence to prove that the plaintiff is an uncertificated bankrupt, for 
a cause of action, as goods sold and delivered {o) ; or money lent (p) ; or a 
contract for the delivery of goods, subsequent to the bankruptcy (^), unless 
the assignees interpose (r). He may maintain trover for goods acquired by 
him after the bankruptcy, against all but his assignees (i). 

Where the bankrupt was tenant from year to year, and a trespass was 
committed prior to his bankruptcy, it was held that he might maintain an 
action of trespass subsequently to his bankruptcy (/). 

By the stat. 6 G. 4, c. 16, s. 126 (u), it is enacted, that any bankrupt who 
shall, after his certificate (x) shall have been allowed, be arrested, or have 

the sale of the bankrupt's goods, he con- 
Bultedwith his assignees and the aoctioneer 
as to the best means of disposing of them, 
and bad also, in a notice to his landlord, in 
which he s^led himself ^ a bankrupt," 
offered to surrender his lease, which was 
accepted; held, that the first did not 
amount to a consent to the sale, so as to 
estop him from questioning the viEdidity of 
the commission, being referable to an in- 
tention to take care of and see that the 
most was made of the property, and with 
respect to his admission of being bank- 
rupt to his landlord, and availing himself 
of the commission to surrender the lease, 
that although, as against his landlord, he 
might be precluded by his admission fVom 
denying it, yet that he was not, as against 
third persons, and that as against the de- 
feudants he was at liberty to prove such 
admissions to be mistaken or untrue. 
Heane v. Rogers, 9 B. & C. 686. 

{k) Supra, tit. AnKissiOKs, 19. 

(0 Ibid, 

(m) Isaac v. Beleher, 6 M. & W. (bx.) 
130 ; and 7 Dowl. 616. 

(ft) Prickett V. Down^ 8 Camp. 181 ; 
14 Yes. 667. 

(o) Foster v. Allansony 2 T. R. 479. 
SUk V. Oshom, 1 Esp. C. 140. Chippin- 
dale V. Tondinson, Co. B. L. 446. Coles 
V. Barrow, 4 Taunt. 764. 

(p) BvansY. Broion, 1 Esp. C. 170. 
But see Kitchen y. Bartseh, 7 East, 68. 

(q) Pebenning v. Boebitek, Holt's C. 1 72. 

(r) Where the plaintiff, whilst he was 
an uncertificated bankrupt, acted as a fur- 
niture broker, hiring vans, and employing 
men, and providing goods, it was held that 
it was such aftcr-Hcquire<l property as the 
assignees intervening were entitled to re- 
cover, and that a payment by the defend- 
ant to them, between the writ and the de- 
claration, might be given in Evidence under 



the general issue, and was a good answer 
to the plaintiff's action. Crqfton v. Poole, 
1 B.&Ad.668. 

(0 TTe&ft V. 15baf, 7 T. R. 891. F&wler 
V. Bourn, 1 B. d: p. 44. See also Braxton 
V. Bale, 2 B. & C. 298, as to his right to 
transfer a note made payable to him since 
his bankruptcy. Also Ashley v. Kellf 
Stra. 1207. Or where he is but a trustee 
for another. Fowler v. Bown, 1 B. Sc P. 
44. CoUs V. Barrow, 4 Taunt. 764. 

(0 CZarikev.Ca2verf,dMoore,96;and 
qu. whether the assignees could have 
maintained the action. See Webb v. Fox, 
7 T. R. 891 ; Fawlery. Doton, 1. B. & P. 
44. Smith v. Bustaee, 2 H. B. 444. 
Cumming v. Boebuek, 1 HolfsC. 172. 

(tt) The efi^t of 6 O. 4, c. 16, s. 121, 
discharging the bankrupt from all debts 
due by him before the bankruptcy, is to 
afbrd relief, not only to the person but to 
his subsequently acquired property; the 
Court therefore set aside an execution i»- 
sued against such property, founded on a 
judgment obtained before his bankruptcy. 
Bavis v. Shapley, 1 B. & Ad. 54. 

The provisions of 6 O. 4, c. 16, s. 127, 
do not prevent the bankruptcy and certifi- 
cate being a bar to an action against the 
bankrupt. Eieke v. Nokes, 1 M. & M. 
308. 

{x) By the stat. 6 O. 4, c. 16, s. 121, 
a certificate discbarges the bankrupt from. 
all claims proveable under the commission, 
but does not discharge any partner or other 
person Jointly bound. Sec. 126 avoids all 
securities given for securing the payment 
of any money due from the bankrupt, as a 
consideration, or with Intent to persuade a 
creditor to sign the certificate, and tlie 
party sued may give the matter in evi- 
dence under the general issue. A certifi- 
cate obtained after the statute on a com- 
mission issued before it is proved by the 



DEFENCE BT ASSIGNEES. 



183 



any action brought against him for any debt, claim or demand thereby 
made proveable under the commisaion against such bankrupt, shall be dis- 
chaiged upon common bail, and may plead in general that the cause of 
action accrued before he became bankrupt, and may give this Act and the 
special matter in evidence (y ), and such bankrupt's certificate, and the allow- 
ance thereof shall be sufficient evidence of the trading, bankruptcy, com- 
mission, and other proceedings precedent to the obtaining such certificate. 

A certificate obtained after the commencement of the action is not 
evidence under the general issue, since it operates merely as a special dis- 
charge under the statute, and therefore must be made available, as the 
statute directs (z) ; but if the defendant plead such certificate it will be 
evidence (a), although obtained after the commencement of the action. 

The effect of the certificate in evidence will be to bar all demands which Effect of 
were due at the time of the act of bankruptcy, and which could have been certiflcatt. 
proved under the commission (b)' 



prodaction of the certificate duly allowed. 
Toiflar V. WeUford, M. k M. 503. A cer- 
tificate of conformity under a fiat must be 
proved to have been entered of record in 
the court of bankruptcy. See the 2 & 3 
W. 4, c. 1 14, B. 8, and tupra, 

(jf) WJiere the general plea of bank- 
ruptcy is pleaded, it concludes to the 
country, and the plaintiff can reply the 
fimi/Uer only. WiUon v. Kemp, 2 M. & C. 
4^, 1 B. & A. 22, which admits evidence 
of ail matters which under the st. 6 G. 4, 
c. 16, s. ldO,render the certificate void. 

(z) OmoUmd v. Warren, 1 Camp. 363. 
Stedman v. Martinnant, 12 East, 664. 
Joteph V. Orme, 2 N. R. 180. A certifi- 
cate allowed after plea pleaded should be 
pleaded jpuif darrein continuance. Lang^ 
mead v. Beard, cited 9 East 85. It seems 
that the Court will take judicial cognizance 
of the Chancellor's signature of allowance. 
Eden, 426. Assumpsit against two defend- 
ants for goods sold, plea non-aesumpeerunt, 
and on &e 15th June one of the defendants 
pleaded his bankruptcy puis darrein eon- 
tinuanee, to which the plaintiff demurred, 
hot the latter proceedings were entered 
on the niri priue record. The cause was 
tried on the 29th of June, and a general 
verdict found against both the defendants. 
The Court set aside this verdict for irregu- 
larity, on the ground that the plaintiffs 
were not entitled to have an absolute ver- 
dict against both the defendants, but con- 
tingent only against tlie one who pleaded his 
bankruptcy. Thompson and another v. J. 
Pereival and C, Percival,2 B. & Ad. 067. 

(a) Harris v. James, 9 Bast, 82. 

lb) Ban^ordv. Burrell,2 B. & P. 1 P. 
C. As to what is proveable under the com- 
mission, see above, p. 176. The defendant 
contracted for the purchase of goods to be 
delivered at stated times, and at prices of 
the then market day, and became bank- 
rupt and obtained his certificate before the 
first delivery was to be made ; the goods 
were afterwards tendered and refused; 
held, that the action was maintainable, not- 
withstanding the bankruptcy, the contract 



not being rescinded, as the assignees might 
have affirmed it if they thought fit, and 
the amount of damage being incapable of 
being ascertained until the market price 
known, was not proveable; held also, that 
the amount of damage was to be ascertained 
by the difference between the price contract- 
ed to be paid, and that which might have 
been obtained for the goods on the day when 
ths contract ought to have been completed. 
Botoman v. Nash, 9 B. & C. 145. Upon 
agreement for the purchase of premises, 
the price was to be paid on a given day, or 
when a good title should be tendered, and 
if the purchaser should be desirous, it 
might remain as a cliarge on the premises, 
so as that upon completion of the convey- 
ances, the vendor should have a proper se- 
curity for the price, with interest, and the 
purchaser covenanted to pay interest so 
long as the price remained unpaid, with a 
proviso, that if the interest were in arrear 
for thirty days, the purchaser should be 
considered as a tenant to the vendor, at a 
stated rent, payable half yearly, and the 
latter should have power to distrain. The 
purchaser did require the purchase-money 
to remain so chafed for five years, was let 
into possession, and subsequently became 
bankrupt ; the vendor distrained for the sti- 
pulated rent, and it was paid by the assig- 
nees ; upon further arrears becoming due 
after the bankrupt had obtained his certi- 
ficate, and an action of covenant brought, 
to which he pleaded his bankruptcy gene- 
rally, held that the agreement was in sub- 
stance an agreement of sale, and could not 
be deemed to be a lease by reason of the 
default in paying the interest, but that the 
unpaid vendor bieing entitled to have the 
premises resold, and to prove for the resi- 
due, the claim for interest was proveable 
under the commission, and the certificate 
therefore a bar. Hope v. Booth, 1 B. £c 
Ad. 408. 

A defendant compromised an action for 
libel, by agreeing to apologize and pay the 
plaintiff's costs. The apology was made, 
and a rule of court obtain^ to pay the 

n 4 



184 



bankruptcy: — actioks against bankrupts. 



Effect of Where a verdict is obtained against the bankrupt in an action for dami^es 
certificate, before an act of bankruptcy, but judgment is not signed till after, the debt 
is not barred by the certificate (c). If an action be commenced against a 
bankrupt after the bankruptcy, for a debt due before, and after a verdict 
for the plaintiff the bankrupt obtain his certificate, the costs of the action, 
as well as the debt, are proveable under the commission (<2), for the costs 
bear relation to the original debt. 

Where a banknipt acceptor pleaded his certificate, and it appeared that 
the commission was sued out after the day of the date of the bill, but before 
it became due, it was held to be incumbent on the plaintiff, an indorsee, to 



costs, amounting to 67 Z. On default made 
an attachment was issued, and the defend- 
ant was committed ; while in custody he 
became bankrupt, and obtained his certifl* 
cate ; held, that the sum named in the rule 
of court was a debt which might have been 
proved under the commission, and that the 
defendant was entitled to be discharged out 
of custody. lli% v.Bumtf, 2 B.& Ad. 779. 

A commission of banlunptcy and certifi- 
cate does not bar a clerk's claim for wages, 
where the commission issued in middle of 
year, and service down to time of commis- 
sion, when clerk, for want ci business, 
eeased to attend. For the bankruptcy does 
not dissolve the contract of service. The 
provision in the 48th section of the Bank- 
rupt Act, in fiivour of clerks and servants, 
makes no difference in this respect. Tho^ 
mas V. WiUiamSy 1 Ad. & Ell. 685. 

The plaintiff accepted a bill for a third 
party, a lessee of the defendant ; the lat- 
ter, on the bankruptcy of his tenant, and 
with a view of obtaining possession of the 
premises, undertook to satisfy the balance 
due on the bill, and deliver it up to the 
plaintiff, or indemnify him against it; the 
defendant failed to do either, and became 
bankrupt; the breach of promise is not 
proveable either as a debt due at the time 
of the bankruptcy, or as a contingent 
debt, or by the plaintiff in the cliaracter of 
a surety, within 6 G. 4, c. 16, s. 56, and 
the certificate therefore is no discharge. 
The relation of a party to a bill as princi- 
pal cannot be converted into that of a 
surety, by any subsequent agreement to 
which the payee is no party. Yailop v. 
JBbert, 1 B. & Ad. 698 ; Laxton v. Peat, 
2 Camp. 185, overruled. In an action in 
tort a^nst a broker for a fraudulent sale 
of stock, it was held that the bankrupt's 
certificate of the defendont was no bar to 
the action. Parker v. Crole, 5 Bing. 63 : 
and 2 M. & P. 150. And see Parker v. 
UTorton, 6 T. B. 695. A bankrupt may 
plead a certificate under a second commis- 
sion, to an action for a debt proveable under 
that commission, although he lias not paid 
15«. in the pound under tluit commission. 
Hobertton Y.Score,9B,Sic Ad. 99S. Upon 
the question whether a debt is barred by 
the certificate, see further p. 176. Debts 
proveable under the commission^ and debts 
discharged by the certiticate, are converti- 
ble terms; and see Goddatdv, Vander- 



heyden, 2 B. & P. 8, n. A debt is not dis- 
charged which accrued after the bank- 
ruptcy, but before the commission. Und. 

(e) As in trespass on the case for se« 
duction, Judgment not being signed until 
after the bankruptcy, although the verdict 
was before it Bust v. OUherty 2 M. & S. 
70. JS!rpar^eCAarZ«t, 14£ast,197;and 
see Parker v. Crole, 5 Bing. 63 ; Atwood 
V. Partridge, 4 Bing. 200. 

(«0 Winety,PHngle,%^.'SL\^. 8<>e 
also Scott V. Ambrote, 3 M. & S. 326. 
5 B. & A. 453. In Jameson v. Campbell, 
5 B. &; A. 250, it was held, that although 
a right of action on a bill, and the costs of 
the action, were disdiarged by a commis- 
sion and certificate, yet that the bond of 
the defendant to secure the payment of the 
damages and costs under the stat. 4 0. 3, 
c. 33, s. 1, given after the bankruptcy, but 
before the certificate, was not discharged. 

Some demands, not proveable under the 
commission, are barred by the certificate, 
«. g, the costs of an action of contract, 
wiiere there is no verdict before the bank- 
ruptcy, are not proveable under the com- 
mission, but are barred by the certificate. 
Bx parte Poucher, 1 G. & J. 38a £x 
parte Hill, 11 Yes. 646. So where the 
party becomes bankrupt before costs taxed, 
on an award against him. Haswell v. 
Thorogood, 7 B. & C. 706. Where inter- 
locutory costs ordered to be paid by a 
bankrupt are taxed before the bankruptcy, 
the certificate is a discharge. Jacobs v. 
PhUlips, 1 C. M. & R. 196; 4 1*yr. 652. 
See furrther Partlaw v. Dearlave, 5 Esp. 
78; 4 East, 438 ; 1 Camp. 428; 6 Ksp. 98 ; 
4 Taunt 90; 2 M. & S. 561. For cases of 
mutual acceptances and exchanges of seca- 
rities. Ro{fe v. Caslon, 2 H. B. 570. Sar- 
rati V. Austin, 4 Taunt. 200. Buckler v. 
Butticant, 3 East, 172. Houle v. Baxter, 
8 East, 1 77. Forster v. Surtees, 12 EaPt, 
605. Cotoleif V. JDunlop, 7 T. R. 6a3. 
Of sureties. Martin v. Court, 2 T. R. 640. 
Brookes v. Lloyd, 1 T. R. 17. Toustaint 
V. MarHnant,2 T. R. 100. Paul v. Jones, 
1 T. R.590. Hodgson v. Bell, 7 T. R. 07. 
Stedman v. Martinnant, 13 East, 427. 
Unliquidated damages. Hammond v. 
Toulmin, 7 T. R. 612. Overseers qf St, 
Martin v. Warren, 1 B. & A. 491 ; 3 Wils. 
270; 6 East, 110. Covenant for rent 
Attriol V. MUls, 1 H. B. 433 ; 4 T. R. 04. 
And see Hornby v. Houlditch, 1 T. R. 02, 



ACTIONS AGAINST BANKRUPTS. 



18^ 



show that an act of bankmptcy was committed before the date of the hill ^e). Effect of 
But that an antecedent act of bankruptcy might be proved by the proceed^ certlftcate. 
ings under the commission, stating a previous act of bankruptcy (/). 

If ^. plead his bankruptcy and certificate, and prove a commission against 
A^ and a certificate under it, he may prove that he was formerly known by 
the name of il., and that the commission was issued against him, although 
at the time of the trial he was known by the name of B. only (g). 

If upon the trial it appear that the bankruptcy was subsequent to the 
commencement of the action, the plea will not be available (A). 

If a surety for the bankrupt, at the time of the act of bankruptcy, was 
compelled to pay money as such surety, after the act of bankruptcy, by the 
8tat. 49 G. 3, c. 121, ^' he was entitled to a dividend under the commission, 
nnless he had notice, when he became surety, of the bankruptcy or insolvency 
of the trader, of which the issuing a commission, although afterwards 
superseded, was to be deemed notice." 

The plaintifi^ accepted a bill for the accommodation of the defendant, who 
became bankrupt before the bill was due, and a commission of bankrupt was 



98. Debt for rent. Wadham v. Mar- 
Uwe, 1 H. B.437; 1 T. R. 91. CfUl v. 
ScrioewUf 7 T. R. 27. In case of a coff^ 
novU given. Wyhome v. JSoit, 2 Taunt. 
68. Incaaesoftort. Parker y. Norton, 
6 T. R. 696. Of verdicts obtained before 
the bankmptcy. Bun v. Gilberty 2 M. & 
S. 70. BJUb of exchange. HowU v. Wi(h 
gifUf 4 T. R. 714. Brooks v. Bogerty 1 H. 
B. 640. Joseph v. Orme, 3 N. R. 180. 
Storey V. BameSy 7 Bast, 436. Pottek v. 
Brown, 5 East, 124 ; stat. 7 G. 1, c. 81. 
Of a bond given after bankruptcy to secure 
a previous debt. Birch v. 8harland,\ T. R. 
715. 8eealsoJSrpar^e2><w^Aa^,4B.&A. 
671. MacartffY.Barlow,Str,940. As to 
bonds, Stat. 7 G. 1, c. 81. CdOotoell t. 
ClutteHnuihfelUid 2 Str. 867. Bxparte 
Barber, 9 Ves. jun. 110. Coiterell v. 
Booke, Doug. 97. Bxparte Oranger, 
10 Ves. jun. 351. CoekertU v. Otoston, 1 
Burr. 436. Boutflower v. Coates, Cowp. 
95. IHmsdale v. Barnes;^ B. Jc B. 8. 

By the late stat. s. 51, any person who 
shall have eiven credit to the bankrupt 
upon valuable consideratioif, for any money 
or tUng whatsoever, which shall not have 
become payable when such bankrupt com- 
mitted an act of bankruptcy, whether such 
credit shall have been given upon any bill, 
bond, note, or other negotiable security or 
not, shall be entitled to prove, as if the 
same was payable presently, &c. deducting 
only thereout a rebate of interest. 

By s. 52, sureties, and others, however 
liable for any debt of the bankrupt, at the 
issuing of the commission, having paid the 
whole or part iti discharge of the whole 
debt, though after the commission issued, 
shall be entitled to stand in the place of 
the creditor, if he has proved or may prove 
the debt under the commission, provided 
he had no notice of any act of bankruptcy 
when he became liable. See tit Surety. 
One of three co-«ureties for the payment 
of an annuity, who has paid money on 



account of the annuity, after the bank- 
ruptcy of anotiier, may sue the latter for 
contribution, notwithstanding the certifi- 
cate, for he could not prove the debt under 
the commission; but he cannot recover 
more than one-third. Brown v. Lee^ B. 
& C. 689. 

The 56th section enacts, that if a bank- 
rupt shall, before the issuing the commis- 
sion, have contracted any debt, payable 
on a contingency, &c., Uie person with 
whom the debt is contracted may apply to 
the commissioners to value the debt, and 
he may prove for the amount. 

The 58th section enacts, that any person 
who shall have obtained a judgment, &c. 
for a debt, or demand, in respect of which 
he shall prove, may also prove for the costs, 
though they shall not have been taxed at 
the time of the bankruptcy. The costs of 
an action brought by the bankrupt are not 
a debt contracted within the former clause. 
BWi V. Moreau, 4 Bing. 57; and see 
Walker v. Barnes, 2 Taunt. 778 ; Scott v. 
Ambrose, 3 M. & S. 326. So a covenant 
by the defendant for the due payment of a 
premium of insurance by anotiier Is not 
within tihat clause; the breach necessarily 
gives a claim for unliquidated damages. 
AtvDOod V. Partridge, 4 Blng. 209. See 
Bx parte Adney, Cowp. 468. 

(e) Pearson v. Fletcher, 6 Esp. C. 90. 
And see Macartney v. Barrow, where the 
court said they would not intend that the 
defendant was a bankrupt before the suing 
out of the commission, 7 East, 487, n. 

(f) Ibid. 

<p) Stevens y. Blisei, 3 Camp. 256. 

(A) Tower v. Cameron, 6 East, 413. 
For by the stat 5 G.2, c. SO, s. 7, the plea 
is given in case any bankrupt who has 
conformed to the law shall afterwards be 
arrested or impleaded for any debt due 
before such time as he became a bankrupt, 
and now see the stat 6 G. 4, c. 16, s. 126, 
supra, 182. 



186 



bankruptcy: — actions against bankrupts. 



Effect of 
certificate. 



Under a 
joint com- 
miflsion. 

Unliqui- 
dated da- 
mages. 



Foreign 
certificata. 



Proof In 
answer. 



issued, and afterwards superseded; the plaintiff afterwards accepted another 
bill to take up the former dishonoured bill, and afterwards an effectual 
commission was sued out on the former act of bankruptcy, under which the 
bankrupt obtained his certificate, and the plaintiff afterwards paid the second 
bill ; it was held, that the payment by the plaintiff was, in effect, a surety 
for the defendant upon the first bill, and therefore within the above statute ; 
and that the case was not within the proviso as to notice, since the surety- 
ship commenced before the issuing of the commission, which was afterwarda 
superseded (t). 

A certificate under a joint commission will be evidence in bar of a separate 
debt (A), and vice versd, a certificate under a separate commission in bar of 
a joint debt(/). 

The certificate is no bar where the plaintiffs claim rests in unliquidated 
damages ; as in an action of trespass or trover, although the conversion was 
before the bankruptcy (m). 

In assumpsit, on a promise to pay a certain sum weekly for the support of 
an illegitimate child, which the plaintiff had by the defendant, upon plea 
of a certificate, it was held that the defendant was liable for the arrears 
which had accrued since the bankruptcy (n). 

The defendant in an action of eusumpsit may prove that he obtained his 
certificate in the country where the debt was contracted, and that by the 
law of that country the debt was discharged (o). Where the defendant in 
America, gave to the plaintiff also residing there, a bill of exchange on 
England, which was dishonoured for non-acceptance, and the defendant 
afterwards, and whilst he resided abroad, became a bankrupt, and obtained 
his certificate, such certificate was held to be a bar to an action here on the 
bill ; for the bill having been dishonoured here, the implied promise to pay 
it arose in America, by the law of which country the defendant had been 
discharged (p), such a certificate is no bar where the debt is contracted in 
this country (q). 

In answer to evidence of a certificate, the plaintiff may show that it was 
obtained unfairly, and by fraud, and that it is void under the stat. 6 G. 4, 
c. 16, s. 190, which enacts, that no bankrupt shall be entitled to his certi* 
ficate, and that any certificate, if obtained, shall be void, if such bankrupt 
•haU have lost, by any sort of gaming or wagering (r) in one day twenty 



(i) Stedman v. Martinant, 13 East, 
427. 

(A) Horsey't Cote, 8 P. Wms. 23. How- 
ard T. Poole, Str. 995. 1157. 

(0 Bx parte Yale, 3 P. Wms. 24, n. 
Bat such dischaige is personal, and will not 
relieve the joint-debtor from his liability. 
See 10 Anoe, c 15. s. 8. 

(m) Parker r. Norton, 6 T.IL 605, 

(n) Per Lord Ellenborougli, MiUen v. 
Whettenbury, 1 Camp. C. 428. 

(o) Hunter v. Potts, 4 T. R. 182. Bal- 
lantine v. CMding, Co. B. L. 480, 5th 
edit. A certificate in England bars creditor 
in Calcutta, although ci«ditor had no no- 
tice. Edwards v. Bonald, Knapp's C. 
250. Seeus, where the remedy only is 
baned. WiUiams v. Jones, 11 East, 439. 

(p) Potter y. Brown, 5 East, 124. It 
seems that a certificate under a banlc- 
ruptey in England is so ftr a judgment in 
respect of foreign states, that it may be 



pleaded in bar to the action of foreign 
creditors. In re Odwin v. Forbes, 1 
Back's B. C. 57; hi the Cock-pit And 
see in re Stein jr Co, I Rose's B. C. 402. 

(q) Smith V. Buehanan, 1 East, 6. 
Shallcrossy,Dysart,2QlScJ,^1, Lewis 
V. Owen, 4 B. & A. 654. 

(r) Bee the repealed provision, 5 Q. 2, 
c. 30, s. 12, under which it was held that 
insuring in the lottery is not within that 
act (Lewis v. Pierey, 1 U. B. 29) ; nor 
the keeping a lotteiy-offlce. Bx parte 
Biehardsan, Co. B. L. 463, 5th edit. Sel. 
V, P. 238). It was also held that the 
plaintiff must elect whether he would give 
evidence of one loss to the amount of 5 /^ 
or of several, to the amount of 1002. 
Hughes v. Morley, Holt's C. 520. A loss 
by gaming defeats a certificate, although 
the bankrapt on the same day wins more 
that he loses. Ex parte Newman^dGljon, 
&J.d29. 



BBFBNCB BT A BANKRUPT.^-GBBTIFICATE. 



187 



ponndsy or within one year next preceding his bankruptcy two hundred 
pounds ; or if he shall, within one year next preceding his bankruptcy 
have lost two hundred pounds by any contract for the purchase or sale of 
any goTemment or other stock, where such contract was not to be performed 
within one week after the contract, or where the stock bought or sold was 
not actually transferred or delivered in pursuance of such contract, or shall 
after an act of bankruptcy committed, or in contemplation of bankruptcy, 
hare destroyed, altered, mutilated or falsified, or caused to be destroyed, 
altered, mutilated, or falsified, any of his books, papers, writings or securi- 
ties, or made, or been privy to the making of any fedse or fraudulent entries 
in any book of account or other document, with intent to defraud his 
creditors, or shall have concealed property to the value of ten pounds 
or upwards; or if any person having proved a false debt under the commis- 
sion, such bankrupt being privy thereto («), or afterwards knowing the same, 
shall not have disclosed the same to his assignees within one month after 
such knowledge. 

So the plaintifiT may show that it was obtained from one of the creditors 
under a promise from the bankrupt to pay him his whole debt (t). If the 
plaintiff adduce evidence to prove concealment to the value of 10 /., the 
defendant may show that the concealment was not wilfttl (ti). By the stat. 
6 G. 4, c. 16, s. 127, by a certificate under a second commission the person only 
of the bankrupt is protected if his effects are not sufilicient to make a divi- 
dend of 155. in the pound. But this clause, when applicable, does not en- 
title a creditor to proceed against the bankrupt after a second certificate for 
a debt which he might have proved under the commission (x). 

Previous to that statute it was sufiicient in order to defeat a defence by Proof to 
a certificate under a second commission, to produce the former commission, defeat the 
certified as of record, and the proceedings under it, to show that the bank- ^ ** 
rupt submitted to it without proving the steps of the former bankruptcy 
in detail (^} : where there had been no notice to produce the certificate, 
proof of the affidavit of conformity was held to be insufficient (a) ; but after 
proof of such notice, it was held (before the late statute) to be sufficient to 
prove, by the solicitor under the commission, that he was employed by the 
defendant to obtain his certificate, and had no doubt, from the entries in his 
books, that it had been obtained (b). 

The person who had the possession of the former commission and proceed- 
ings was served with a subpemA duces tecum to produce them (c). After 
such proof by the plaintiff, it lay on the defendant affirmatively to prove 



(#) In order to prove this, the person 
who proved the &lse debt may be called 
as a witness, or the fact may be psoved by 
presumptive or collateral evidence. J5'J- 
monttone v. Webby 3 Esp. C. 264. 

{t) PhUlipt V. IHcas, 15 East, 248, 
under the stat. 6 G. 3, c. 30, s. 11, and 
now under the stat 6 G. 4, c. 16, s. 138. 

(u) Catheart v. Blaekwood, in Dom. 
Pro. 1765. 

(x) Robertson v. Score, 3 B. & Ad. 338. 
The stat. does not apply to a bankrupt 
who has obtained his certificate under a 
subsequent commission after the statute 
had passed. Careto v. Eduxtrds^ 4 B. dc 
Ad. 351. 



iy) Haviland v. Cooke, 5 T. R. 665. 
3 Esp. C. 195. 

(a) Graham v. Grill, 4 Camp. 282. 

(b) Henry v. Leigh, 3 Camp. 499. 

(c) It seems that the book at the Bank- 
rupt-office, in which entries are made of 
the allowance of certificates by the Chan- 
cellor, is not secondary evidence of the 
allowance of the certificate ; for it is not 
seen or referred to by the Chancellor, and 
the entries are not made by any officer 
of the court appointed for that purpose. 
Henry v. Leigh, 3 Camp. 499. See the 
late statute. 



188 



bankruptcy: — action against a bankrupt. 



Proof to 
defeat the 
certificate. 



Compound- 
ing with 
crediton, 

&C. 



Sabseqaent 
promiBe. 



that he has paid 15 «. in the pound under the second commission (d) ; proof 
that it yrovld probabfy produce so much was insufficient (e). 
• Where the action was brought before a dividend had been made under 
the second commission, or the period had elapsed under the stat. 5 Geo» 2, 
c. 30, s. 37, it was held that the certificate v/ould be no bar, if it were shown 
that it was not probable that the bankrupt would be able to pay lbs. 
in the pound. 

So the plaintiff, under the stat. 6 G. 4, c. 16, s. 127, may show that the 
defendant has compounded with his creditors (/), or delivered to them his 
estate and effects, and been released by them (^). Where the defendant 
bad compounded with his creditors, but afterwards, and before he became 
bankrupt paid them the whole of their debt, and did not pay 16 s. in the 
poimd under a subsequent commission, his certificate under it was held 
to be a bar (h) to a subsequent action. Under the same section the 
plaintiff may also show that the bankrupt has been discharged under an 
act for the relief of insolvent debtors. 

The certificate is void if any one of the creditors, although without the 
privity of the bankrupt, was induced by money to sign the certificate (t). 

The plaintiff may also reply to the certificate by evidence of an ex- 
press promise by the bankrupt to pay the debt, and is not bound to 
declare specially on such subsequent promise (A). But it seems that if 
the promise be special to pay when he is able, the plaintiff should prove 
his ability at the time of the action brought (/) ; and the promise is not 
binding unless it be precise and positive (»i), and in writing (n). 

A promise made by a bankrupt before he has obtained his certificate will 
revive the debt, although the certificate be obtained afterwards (o). A mere 
admission of the debt is insufficient (/>), though accompanied by an unac- 
cepted offer to pay the debt by instalments (g). 

A bankrupt sued by his surety, who paid the debt subsequently to the 



(d) Qregory v. MerUm, 3 Esp. C. 196. 

(e) Coverley v. Morley, 16 East, 226 ; 
and qu. whether the actual payment of 16«. 
in the pound be not a condition precedrat 
See the judgment of Bayley, J.; and see 
Jelfi y. Ballard, 1 B. & P. 467. 

(/) Such a danse, it has been held, 
under the stat. 6 O. 2, c. 30, s. 37, does 
not contemplate limited compositions with 
part of a trader's creditors, but general 
ones only, such as would admit all credi- 
tor!, of whatsoever description. Norton v. 
Shakespeare, 16 East, 619. See Slaughter 
V. Cheyne, 1 M. & S. 182. 

(g) Jelfi V. Ballard, 1 B. & P. 467. 

(A) Head v. Sowerby, 3 M. & S. 78. 

(i) Holland v. Palmer, 1 B. &; P. 96. 

\k) WUliatM V. Dyde, Peake's C. 68. 
Trueman v. Fenton, Cowp. 648 ; but see 
Penn v. Bennett, 4 Camp. 206. Leaper v. 
Tatton, 16 East, 420. 

(0 Betford v, Saunders, 2 H. B. lia 
Qu. whether payment of interest after 
bankruptcy, on a bond for the payment of 
money forfeited before bankruptcy, will 
render the bankrupt liable on the bond. 
Alsop v. Brown, Doug. 191. Semblc, not. 



(m) Lyribwry v. Weightman, 6 Esp. C. 
196, where the bankrupt said that his 
effects would pay 20 f. in the pound, and 
that he would pay every body, it was held 
that he was not bound. 

(n) By the stat. 6 G. 4, c 16, s. 131, no 
bankrupt after being discharged by a cir- 
tificate shall be liable to pay any debt, &c., 
discharged by such certificate upon any 
promise made after the suing out of the 
commission, unless it be in writing, signed 
by the bankrupt, or by some person autho- 
rized by him. — But the plaintiff in such 
case need not declare specially. WiUiams 
V. Dyde, Pcake's C. 68. Russelly. Hard- 
man. Ibid. The initial of the defendant's 
surname is not a signature within the 
statute. Hubert v. Moreau, 2 C. & P. 
628. 

(o) Roberts v. Morgan, 2 Esp. C, 736. 
And see JSmst v. Sdacoaluga, Cowp. 
627. *^ 

(p) Fleming v. Hayne, 1 Starkie's C. 
370. Bailey v. DilUm,2 Burr. 736. Bes" 
ford V. Saunders, 2 H. B. 116. Alsop v. 
Brown, Doug. 182. 

(q) Ibid. 



DBFBNCB BT THB BANKRUPT. — OERTIFICATB. 



189 



bankruptcy, cannot avail himself of his certificate without having specially 
pleaded it(r). 

By the stat. 6-Oeo. 4, c. 16, a. 59, the proving by a creditor under the 
conunission is an election by him not to sue at law ; but it seems that such 
an election cannot either be pleaded or given in evidence in bar of the 
action («). 

The Stat. 6 Geo. 4, c. 16, s. 76, enacts, that where any bankrupt is entitled Discharge 
to any lease or agreement for a lease, if the assignees accept the same, he ^^^ ^^^ 
shall not be liable to pay any rent accruing after the date of the commission, J^^'^gig. 
or to be sued in respect of any subsequent non-observance of the conditions, nees. 
covenants, and agreements therein contained ; and if the assignees decline 
the same, shall not be liable in case he deliver up such lease or agreement 
to the lessor or person agreeing to grant such lease, within fourteen days 
after notice that the assignees have declined {t). 



(r) Under the stat. 49 Geo. 3, c. 121, 
s. 8 ; for that statute discharged the bonk- 
mp^ having his certificate, of all such de- 
mands, at the suit of every such persoo, in 
like manner to all intents and parposes as 
if Boch person had been a creditor before 
the bankruptcy. Stedman v. Martin- 
nanty 12 East, 664. The stat. 6 Geo. 4, c. 
16, 8. 121, discharges a certificated banlc- 
mpt from all claims proveable under the 
Commission. 

(«) The proving a debt under the com- 
mission is no defence to an action at law 
for tlie same debt ; and the election of the 
creditor under the stat. 49 Geo. 3, c. 121, 
Sk 14^ is confined to the debt actually 
proved, and does not extend to distinct 
debts, though (fjuMdefii generit, and due at 
tlie same time. Harley t. Oreentooodf 5 
B. k. A. 95. WaUon ▼. Medex, 1 B. & 
A. 121 > and see Bridget v. MillSy 4. Blng. 
19. But see Beed ▼. Sawerby, 3 M. &; S. 
78. So it was held that the statute did 
not exclude a creditor who had prored a 
joint debt under a commission against one 
from suing the rest. Heath v. Hall, 4 
Taunt. 326. See also Young v. Glass, 16 
Bast, 252. So it was held that the 
dcawer of a bill of exchange, who liad paid 
tiie amount to the holder, after a commis- 
sion of banicmptcy against the acceptor, 
might sue the acceptor before he Iiad ob- 
tained his certificate, and arrest him on the 
bUl, although the holder had proved the 
bill nnder the commission. Me€ui v. J3ra* 
ham, 3 M. & S. 91. A iMmkrupt lessee is 
diseharged by the statute, not only from 
the lease, but from all covenants to be per- 
formed as lessee. Kearsey v. Carsiairs, 
2 B. & Ad. 716. But the statute does 
not put an end to the lease, but merely 
discharges the bankrupt from payment 
of rent or observance of the covenants. 
Manning v. Flight, 3 B. & Ad. 211. 
TbelMnkruptcy of tlie lessee does not dis- 
charge a surety on a bond for the perform- 
ance of covenants in a lease. Inglis v. 
M^Dougallyl Moore, 196. Lease of a mill, 
with covenants that on the determination 
of the lease, the machinery should be again 



valued, and the difference between that 
and the former valuation paid by the lessor 
or lessee, as it was greater or less tlian the 
former, the lessee becoming bankrupt, his 
asdgnees repudiate the Tease, and the 
lessor declines to pay the difference, the 
assignees may (after demand and refusal), 
recover the value in trover. Fairbum v. 
Eastwood, 6 M. & W. 679; and see Kear* 
sey V. Carstairs, 2 B. & Ad. 716. 

(t) The statute does not apply to a lessee 
and his assignees of a lease. Taylor v. 
Yottng, 3 B. & A. 521, under the statute 
49 G. 3, c. 121. By the clause 6 G. 4, 
c. 16, s. 75, assignees may be compelled to 
elect and to deliver up the lease if they de- 
cline to accept it. Where the lessee 
covenanted not to assign, became bankrupt, 
and after acceptance of the lease he came 
in again as assignee, it was held that he 
was discharged. See Doe v. Smith, 5 
Taunt 795, as to proof of acceptance, vide 
supra, 131. The chancellor has no autho- 
rity to decide whether tlie assignees have 
elected or not ; it is a question of ftict for 
a jniy. Sx parte Quantock, Buck. 189. 
It has been held, that the mere advertising 
a lease for Bale, without taking possession, 
and without stating themselves to be tiie 
owners or pof^sessors, did not amount to 
an assent. TStmer v. Richardson, 7 
East, 335. But if a bidder had been ac- 
cepted, and a deposit received, it would 
have been evidence of an acceptance. 
Hastings v. Wilson, 1 Holt's C. 290. 
Where they allowed the bankrupt's goods 
to remain on the premises nearly a twelve- 
month, and then to avoid a distress paid 
the rent, but informed the landlord that 
they did not mean to take the lease unless 
it could be advantageously disposed of, 
and afterwards put it up to sale, when 
there was no bidder, and omitted to re- 
turn the key for near four montlis after- 
wards, but never took possession. Lord 
Ellcnborough held that they were not 
liable. Wheeler v. Braniah, 3 Camp. 
340. So though they have released an 
under-tenant of the lessees. Hill v. 
Dobie, 8 Taunt. 325. 



190 



BANKRUPTCY : INDICTMENT. — COMPETENCY. 



Indictment 
against a 
bankrupt. 



Compe- 
tency of 
witnesses. 



IV. Upon an indictment against a bankrupt for a felonious embezzle* 
ment of his effects, &c., the steps of his bankruptcy must be strictly 
proved (u). 

Where the petitioning creditor's debt was alleged to be due to A. B, and 
C, surviying executors of the last will and testament of D., after proof that 
A, B, and C. were the executors, and were directed by the will to carry on 
the business, it was held to be necessary to prove that they all acted in dis- 
charge of the trust (x). 

An allegation, that the commission issued under the great seal of Great 
Britain, is proved by evidence of an instrument issued under the great seal 
of the United Kingdom of Great Britain and Ireland (y). 

Upon an indictment against a bankrupt for perjury, alleged to have been 
committed in his examination before the commissioners, it was held to be 
necessary to prove the bankruptcy in strict detail, and that the declaration 
of his bankruptcy by the commissioners was not sufficient (z) ; for if he was 
not a bankrupt at the time, the commissioners had no jurisdiction to admi- 
nister an oath and examine him. The case of a person who makes a deposi- 
tion, on which the judgment of the commissioners is to be founded, as to 
the bankruptcy itself, falls under a different consideration ; the perjury may 
consist in the falsely swearing that the party was a bankrupt^ so that if it 
were necessary to prove the bankruptcy, the perjured party could not be 
punished at all. In such a case the offence of perjury seems to be complete, 
independently of the question of bankruptcy, for a false oath is taken before 
commissioners duly authorized to administer the oath (a). 

The indictment against a bankrupt, on 5 Geo. 2, c. 80, for not making 
a full and true disclosure, &c., stated a notice requiring him penonalhf to 
appeavy &c., according to the several statutes then in force concerning 
bankrupts, and particularly the statute passed in the 6th Geo. 2, stating 
its title, but upon the notice being produced it set forth the title of the 
49th Geo. 3 ; held that the variance was fatal. It seems also, that the aver- 
ment of personal service of the notice should state whether the party 'was 
at large or in prison, the statute pointing out modes of service in each 
case {b), 

y. It is an inveterate and universal rule, that the bankrupt himself (c) is 
not a competent witness to prove any fact to support or impeach the com. 
mission, either on an issue to try the bankruptcy, or in an action by the 
assignees to recover a debt due to the estate, even though he shall have 
obtained his certificate, and have released the assignees, for he is inte' 



(ti) See the fonn of the indictment, and 
the necessary allegations, Criminal 
PLBAniNOS ', and see the stat. 6 Qeo. 4, 
c. 16,s. 112. 

(x) R. V. Barnes, 1 Starkie's C. 243. 

(y) B, ▼. Bullockf 1 Taunt. 71. 

(z) B, T. Punshon, 3 Camp. 96, cor» 
EUenborough, G. J. 

(a) See R» ▼. Raphaelf cor, Abbott, J. 
Devon Spring Assize. 1818, Manning's 
Index, 2d edit 232 ; where it is stated to 
have been ruled, that on an indictment 
against a third person examined before the 
commissioners, their declaration that the 
party is a bankrupt is sufficient. It is not 
stated whether the examination in this 



case was preparatory or subsequent to the 
acyudication. 

(ft) B. V. Barratton^ 1 Gow. C. 2ia 
Where the bankrupt did not surrender, 
being detained in prison, it was held, that 
he was not bound to apply to the commis- 
sionera to be brought up to surrender, nor 
to the chancellor to enlarge the time, sl- 
though he was privileged so to do, and the 
omitting to take those steps eonld not 
make him guiltv of felony, Quder the 6 G. 
4, c. 16, ss. 113. 119. B. V. Mitckelly 4 
C. &P.261. 

(c) Neither can his wife be examined 
for that purpose. Bx parte James, I P. 
Wms.611 ; 12 Vin. Ab. 11, pi. 28. 



COMPETENCY. 



191 



rested in the certificate which is founded upon the bankruptcy (d). And it Compe- 
makes no difference whether the question be asked upon an examination in tency of 
chief, or upon his cross examination (e) ; neither can he be asked questions ^^ 

with a view to establish an antecedent act of bankruptcy (/), or to explain 
an act relied on by the adversary as an act of bankruptcy (^). Accordingly, 
upon the trial of issues out of Chancery, to try whether Herbert and 
Ryton were bankrupts, and whether they owed the petitioning creditor 100 iL, 
I^ton, who had obtained his certificate, was produced to prove the debt ; 
but Ryder, C. J. was of opinion that he was not competent to prove that 
he and Herbert were jointly indebted to the petitioning creditor, or that 
they were partners, or that Herbert was a bankrupt, since each of those 
facts tended to support the commission ; and if that were not good the certi- 
ficate would become bad (A). Neither can he be examined to explain an 
equivocal act of bankruptcy (t). But the rule is restricted to evidence 
affirming or disaffirming the bankruptcy. He is competent, in an action 
by the assignees against a creditor who has levied under an execution, to 
proTe the defendant's knowledge of his insolvency (J), 

An uncertificated bankrupt is not a competent witness in actions by the 
assignees, for he is interested in procuring funds (k) for the discharge of his 
debts ; but he is a competent witness against the assignees to diminish the 



{(£) Field v. Curtis,2 Str. 829. FUnoer 
T. Herbert, 2 H. £c B. 279. Chapman v. 
Gardiner, 2 H. B. 279, n. Swens v, 
Goldf B. N. P. 41. In Oxlade v. Per- 
chard, 1 Esp. C. 287. it was held that the 
bankrapt was competent to explain a 
donbtfai act of bankmptcy . But tiiis was 
oraraied in BcUfbett v. Oumey, 1 Monta- 
gue, 489, and is contrary to Chapman v. 
Gardiner, 2 H. B. 279. Qu, whether 
tliis rale is not to be regarded, in some in- 
itances at least, as a role of policy rather 
tliaa as a rule founded on the ordinary 
prmciple of exclusion on the score of lor 
terest; where, for instance, the bankrupt 
hu obtained his certificate, and released 
Ml assignees, he has no immediate interest 
is the event of an action brought by the 
tuignees, for the result would not affect 
Ms certificate. See Christian's B. L. 444, 
3 edit. Binnt v. Tetley, 1 M'ClelL & 
T. 397. Baymond, C. J. admitted a bank- 
rapt to give evidence as to the time of an 
act of bankmptcy, although he refused 
Mm as a witness to prove the act, 12 Vin. 
Ab.ll,pL28. 

(e) BUom v. Bailey, Sitt after Mich. 
T. 50 Geo. 3, cor* Lawrence, J. 1 Sel. N. 
P. 271. BinM V. Tetley, 1 M^Qell. & Y. 
397. 

(/) Wyatt V. WUkinton, 6 Esp. C. 
187. 

ig) Sayer v. Gamett, 7 Bing. 103. 

(A) Fhwer v. Herbert, cited 2 H. B. 
279: and see Cross v. Fox, Ibid. 

(t) Hfffffnan v. Pitt, 5 Esp. C. 22. 
Sayer v. Qamett, 7 Bing. 108. 

G) Reed v. James, 1 Starkie's C. 134. 
It is necesaaiy, however, that he should 
have obtained his certificate, and released 
assignees. 

(ft) Kermet v. OreenwoUers, Peake's 



C. 3. Evans v. Oold, B. N. P. 41. Lang^ 
den Y, Walker, Cowp. 70. Butler v. Cooke, 
Ibid. In an action to recover money paid 
to a creditor out of voluntary preference, 
it was held that the wife of the bankrupt 
was a competent witness for the assignees, 
on the ground of indifference, since, if the 
assignees recovered, the defendants would 
recover to the same amount under the com- 
mission. Jourdaine v. Lefevre, 1 Esp. C. 
66, car. Ld. Kenyon. But see tif/ra, 
134 (p). In an action by the assignees of 
a bankrupt for money had and received 
to their use, the wife of the bankrupt 
is not competent to prove the payment 
of a sum of money to the defendant by 
the bankrupt, after the bankruptcy, for 
malt supplied before the bankruptcy, 
although the bankrupt has released his 
assignees, he not having obtained his cer- 
tificate. The objection, however, is not 
that if the plaintiff failed the costs of the 
suit would be paid out of tiie estate, and 
so diminish the general fund ; because tliat 
is not a certain necessary legal conse- 
quence, but is to depend on the Judgment 
of the commissioners ; the main ground of 
objection is, that the bankrupt has an 
interest in the assignees recovering the 
amount claimed, and that tliere not being 
yet a definite surplus, it is not a releasable 
interest. And although it was suggested, 
that if the assignees recovered the amount 
claimed, the creditor would recover for 
his demand against the uncertificated bank- 
rupt, yet this is not a countervailhig inte- 
rest; for tlie liability of the bankrupt is 
not the result of the present action ; a ver- 
dict for the plaintiff would not create or 
forward his liability to the creditor, nor 
would the verdict be evidence of it. Nei- 
ther, as it seems, would a verdict against 



192 



BANKRUPTCY : COMPETENCY. 



Certifi- 
cated 
Bankrupt. 



fund (/). Neither would he bie a competent witness for his surety in a joint 
bond to prove payment, where the obligees had made their election to prove 
under the commission (nt), for the plaintifis, if defeated, could no longer 
sue him ; but if they succeeded, he would be liable to his surety. 

But he is a competent witness for a defendant, his surety (the acceptor 
of an acconmiodation bill), who has released him in the usual form, for the 
defendant cannot prove against his estate (n). 

Upon an action against the assignee of a bankrupt to recover the penalty 
upon an usurious loan of money to the bankrupt, it was held that the latter, 
who had not obtained his certificate, or repaid the money, was not a com- 
petent witness to prove the offence, although he was ready to release to the 
assignee all benefit which might arise from the discharge of that debt in 
particular, and also all claim to surplus and allowance (0), and although 
the defendant had proved under the conmiission ; because (as it was said) 
the creditor might still bring an action at law, and arrest the bankrupt for 
the whole of the debt. But now, by the stat. 6 G. 4, c. 16, s. 69, the cre- 
ditor after proving the debt could not afterwards in such a case sue the 
bankrupt ; and even if he could, yet, as the verdict would not be evidence 
for the bankrupt in an action afterwards brought by the assignee, it seems 
that he would not be an incompetent witness on that ground (p). 

A certificated bankrupt having released his surplus and allowance to 
the assignees, or executed a general release to them, is a competent wit- 
ness in actions by the assignees to increase the divisible fund, for he is 
no longer interested in the amount (q). In such case he is competent to 
identify the proceedings under the commission, to establish them in evidence 
for the assignees (r) ; yet it has been held that he is not in such case a com- 
petent witness for his assignees against the Crown (s). But a certificated 
bankrupt under a second commission is not competent for the assignees, 
unless he has paid 15«. in the pound under that commission (t), 

A. certificated bankrupt who has released his assignees is still incom- 
petent to be a witness for the assignees, if it appear that he has done any 



the assignees relieve him from liability to- 
the creditor; it would be no answer to 
say, that he had been already paid ; the 
answer would be, that it was the money of 
the assignees. Williams v. Williams, 6 
M. & W. 170. 

(/) Langden y. Walker, cited Cowp. 70. 
Butler v. Cooke, Ibid. 

(m) Toumend v. JOowning, 14 East, 566. 

In) Carttcright Y. ^i/lionu, S Starkie's 
C. 340. See Vol. I. tit Intbbbst, and 
below, tit. Bill of Exchange. The 
drawer and acceptor of a bill having had 
mutual dealings, were in ignorance of the 
state of the account, wliich was in fact in 
favour of the acceptor (the defeudant) ; and 
before tlie bill became due, the drawer had 
become insolvent, and, wliilst avoiding other 
creditors, upon being pressed by theplaintiff, 
a creditor, indorsed the bill to him after an 
act of bankruptcy, upon which a commis- 
sion was afterwards sued out; the bank- 
rupt having been called, and the Judge 
having directed the jury to say whether, 
under the circumstances, the transfer was 
a bona fide transfer, they found for the 
defendant ; it wuf> held, that such a biU 



could not be considered an accommodation 
bill, and therefore there was no implied 
undertaking to indemnify the acceptor, and 
the bankrupt, therefore, was a competent 
witness for him. Bagnall v. Andrews, 7 
Bing. 217. 

(o) Masters v. Drayton, 2 T. R. 407. 

(p) See tit Iktbbbst. 

iq) Nares v. Saxby, cited 2 T. R. 407. 
See Carlisle v. Badff, 1 C. & P. 284. He 
may, it seems, show his certificate, and re- 
lease by oral evidence on the voir dire, 
Carlisle v. Eady, 1 C. & P. 284. Wand- 
less V. Cawthome, M & H. 321. But see 
Goodhayy. Henry, VI, & M. 319; ib. 121. 
. (r) Morgan v. Pryor, 2 B.& 0. 14. 

(s) Crauford v. The Attorney^general, 
Price, 6. 

(t) Keanet v. QreenwoUers, Peake's 
C. 3. A bankrupt who, having obtalnod 
his certificate, takes the benefit of an In- 
solvent Act, and then relaises his assignee* 
under the commission, is not a competent 
witness for these assignees, for he cmild 
not bind the assignees of his estate under 
the Insolvent Act Per Bayley, J,, York 
Lent Ass.. 18:!& . 



bakkruptct: compbtbitcy. 



193 



aet wluch aymdB the certificate, for iSien his fiitare effects remain liable. Certificated 
And therefore, in an action by an assignee to recorer money lost by the 2!conme-* 
bankrupt at play, he is not a competent witness for the plaintiff (u). But tency. 
even in sach a case he may be rendered competent by releases from all his 
creditors and his assignees (or). And where such a release was executed a year 
after the issuing the commission, by all the creditors who had proved under 
the commission, it was held that the release was sufficient. 

Though he has pleaded his certificate he is not, it is said, a competent 
witness for a co-defendant (jf). Otherwise if as to him a noUe prosequi has 
been entered {z). 

It has been said, that if in an action by assignees the defendant calls the 
bankrupt as a witness, he waives all objections to his competency, and he 
may then be cross-examined as to the requisites of bankruptcy (a). 

Where the assignees sought to recover money paid to a creditor by way 
of voluntary preference, it was held that the wife of the bankrupt was a 
competent witness for the plaintiffs, on the ground that she stood indifferent 
in point of interest (6); since, if the assignees recovered the amount, it 
would be proved under the commission by the creditor. This decision, 
however, seems to be questionable, since it is obvious that unless the estate 
be sufficient to pay 20 #. in the pound, the dividend to the rest would be 
diminished by allowing any one creditor his whole debt ; and so would the 
allowance to the bankrupt. 

A petitioning creditor is in general incompetent to support the commis- Creditors. 
sion(c), since he enters into a bond to the Chancellor, conditioned to 
establish the facts on which the commisnon depends, and to cause it to be 
effectually executed ; but he is competent to cut it down {d). 

A creditor is in general an incompetent witness to increase the estate (e). 
It has been doubted whether he is not competent where he has not proved 
his debt under the commission (/*). But it seems to be now held that he 
is incompetent in all cases, so long as he remains a creditor, whether he 
has or has not proved his debt, and whether an action be brought by the 
assignees to recover a debt, or the question be tried on an issue, for a cre- 
ditor has an interest in the preferable remedy for recovering his debt under 
the commission {g). But he is a competent witness for the assignees after 

(m) Carter v. Ahbetty 1 B. &C. 444. bomy 1 Bose, 287. 992. So if being a cre- 

(«) IhUL ditor ander a first commisgion, the bank- 

(y) Baeen ▼. Dmning, 3 Eep. C. 26. rapt, before his certificate, promiflee full 

Mmmet t v. Bradley^ 1 Moore,332 ; Peake's payment, he is not competent to support a 

L. B. Append. 87. Vurrie v. ChUd, 9 Camp. second commission. Roberts t. Morgan, 

2£sp.C.736. But now see the Stat. 6 0. 4, 
c. 165, as to promises made by the bank- 
rupt. Where parties claiming debts were 
summoned to attend for examination before 
conmiissioners, held that they were not to 
be deemed '* witnesses" within the 6 Q. 4, 
c. 16, 8. 20, to entitle them to an auxiliary 
commission for their examination. JEx 
parte Kirby, 1 Mont U M. 440. 

(f) Williams v. Stevens, 2 Camp. 900. 

Ig) Bx parte Malkin, in re Adams, cor. 

Oibbs, C. J. Sitt after HO. Term, 1814, 

2 Christian's B. L. 459. 9 Camp. 545. See 

JSx parte Osbom, 2 Ves. Beames, 177; 

1 Rose, 977. 992; Crooke v. Edwards, 

2 Starlcie's C. 902 ; Jn re Gould, 2 Schoales 
&: Lefh>y, 116, per Lord Redesdale; contra, 
Williams y. Stevens, 2 Camp. 901. Where 
the adjudication was founded upon the 

O 



(z) M*Iver v. Humble, 16 £ast, 171. 

(a) Fletcher astd another v.Woodmass, 
Sd. N. P. 253. 

(b) Jourdaine t. Lefeure, 1 Esp. C. 66. 

(c) Green ▼. Jones, 2 Camp. 41 1. Beed 
V. James, 1 Starkie's C. 196. 

(d) Per Lord EUenborough, 2 Camp. R. 
411. JJeifd V. Stretten, 1 Starkie's C. 40. 
In an action against a sheriff, for a fidse 
letniB to a JL/a., the defence being the 
baakroptcy of the debtor, the petitioning 
creditor is, it seems, a competent witness. 
Wright v. Lainson, 2 M. & W. 799. 

(e) Bffglesham v. Haines, 12 Vin. 11. 
Ambrose v. CUndon, C. T. Hardw. 267. 
£tM!pe»v.CAa|»man, Peake's C.19. Adams 
V. Mamn, 9 Camp. 594. Croohe v. Ed- 
wards, 2 Starkie's C. 902. Ex parte Oe- 

VOL. II. 



194 



BANKRUPTCY : COMPETENCY. 



Ataignee. 



Pfodaction 

ofdpca- 

meats. 



he has assigned his debt (A). He is not a competent witness upon an 
issue to try whether the bankrupt has lost more than 5/. at one sitting by 
gaming (t) ; he would be entitled to a share of the bankrupt's allowance 
forfeited by the gaming. A creditor who has assigned his debt, although by 
parol only, is competent (A). It was held that he was ex necessitate compe- 
tent to prove an act of bankruptcy under the stat. 4 Geo. 8 c. 33 (/). 

In an action by a creditor against the defendant for inducing him by 
misrepresentations to trust a bankrupt, another creditor of the bankrupt is 
a competent witness for the plaintiff, for a recovery by the plaintiff would 
not discharge his claim on the bankrupt's estate (m). A release by a 
creditor to the assignees is sufficient, without a release to the bankrupt (n). 

A creditor is competent to negative the petitioning creditor's debt (0). 

An assignee is a competent witness in actions relating to the bankrupt's 
estate, where he is not a party, for as assignee he is a mere trustee (p), 

A commissioner called to support the commission under which he had 
acted was allowed to be examined {q). 

Where the act of bankruptcy consists in the execution of a deed by the 
bankrupt, the Chancellor will order the person who has the possession of 
it to attend before the commissioners (r). If the petitioning creditor be 
called by the assignees, merely for the purpose of producing a promissory 
note on which the debt is founded, he is not liable to be cross-examined by 
the defendant (#). After the death of a witness his examination entered of 
record is evidence under the stat. 6 Geo. 2, c. 80, s. 41 (Jt), A deposition 



examination of a party, a creditor, who at 
the time stated he did not consider himself 
a creditor, and should make no claim, the 
court refused to supersede the commission. 
Ex parte UilU, 1 Mont k M. 272. And 
see King v. Stdlock, I Taunt 78. 

(h) Granger v. Tudor, Bl. 1272. Where 
a creditor had sold his debt, held that he 
was a competent witness to support the 
fiat. Pulling v. Meredith, 8 C. & P. 763. 

(i) Shuttleuxtrth v. Bravo, Str. 507. 

Ik) Heathy. Hall, 4 TtLunLQite. Gran- 
ger V. Furlong, 2 Bl. R. 1273. 

(I) Which adjudges a member of parlia- 
ment to be a bankrupt who does not pay 
or secure the debt, as prescribed by the 
statute, within two months after personal 
service of summons. Per Ld. Eldon, C. 
Ex parte Harcourt, 1 Rose's B. C. 203. 
and now see the stat 6 O. 4, c. 14, s. 10. 

(m) Burton v, Loyd, 3 Esp. C. 207. 

(n) Amhrote v. Clendon, C. T. H. 267. 
Koopet V. Chapman, per Ld. Kenyon, 
Peake's C. 19; and he is competent to 
prove the act of bankruptcy, although the 
bankrupt be plaintiff in the action. Ibid. 
And see Sinclair v. Stevenson, 1 C. & P. 
582. 

(0) In re Cadd, 2 Sch. & Lef. 116. 

\p) In an action by an execution cre- 
ditor of the bankrupt against a sheriff for 
a fidse return to a writ oi fieri facias, it 
was held, that an assignee who had released 
his claims on the bankrupt's estate, was a 
competent witness to establish an antece- 
dent bankruptcy Tondinson v. WUhes, 
2 B. & B. 397. 



{q) Crooke v. Edwards, 2 Starkie's C. 
302, the objections were tliat he had re- 
ceived fees and would be liable to an action 
of trespass in case the commissioners were 
to be questioned. Ld. Ellenborough observ- 
ed, that be would not be called on to return 
the fees, but said that he would not then 
pronounce upon the question. It has been 
observed on this case, that the interest of 
the witness in future fees was not noticed. 

(r) Ex parte Treacher, 1 Buck's B. C. 
17 ; and now see the stat 6 Q. 4, c. 16, 
s. 24. 

{s) Reed v. James, 1 Starkie's C. 136. 
Qu, whether he is compellable by a court 
of law to produce the document lb, 

{t) See Jansen v. Wilson, Dougl. 257. 
The statute directs that the Chancellor 
shall appoint a proper person to enter the 
proceedings of record. An examined copy 
of a record so made would therefore be 
evidence. Tlie provisions of this statute, 
as to recording proceedings, are confirmed 
by the stat. 6 0. 4, c. 16, s. 05. See fur- 
ther as to Burolment Exports Robson, 
Ambler, 180. The commissioners have no 
estate given them in the bankrupt's real 
property, but only a, power to be executed 
by deed indented and enrolled. Perry v. 
Bowers, T. Jones, 196. The enrohnent 
has no relation to the date of the deed. 
Elliot v. Danby, 12 Mad. 3. Bennett v. 
Gaudy, Carth, 178 ; 1 Vent 860. A writ 
of supersedeas is evidence that a commis- 
sion issued on the day mentioned in the 
writ. Gervis v. Grand Western Canal 
Company, 5 M. & S. 76. 



bankruptcy: competency. 



195 



formerly made by a very old witness may be read to him in order to refresh 
his memory (u). 

A declaration by a petitioning creditor since deceased, made after the Declare'- 
commission, is not evidence against the assignees upon an issue to try tlons. 
whether the commission was concerted between the petitioning creditor, the 
bankrupt, and the attorney (x). 

In an action on a promissory note against three partners, one of whom 
pleaded his bankruptcy, and proved it on the trial, the court would not 
allow a verdict to be taken for him pending the trial, to enable him to prove 
an alteration in the note to defeat the action (^). 

The examination of a party before the commissioners is evidence against 
b'm, although the whole of it was not taken down, having been signed by 
him after it had been read over to him (z). 

A declaration by a bankrupt before his bankruptcy as to his acts or pro^ 
perty is evidence against his assignees (a), and such evidence is adducible 
although the bankrupt himself has been called and examined (b). 

Where the defence was that goods had been delivered in payment of an 
antecedent debt, and that the payment was protected by the 82d clause in 
the Bankrupt Act, and it was contended by the plaintiffs that such delivery 
was by way of fraudulent preference, and was not a bond fide payment 
under that clause. Lord Denman admitted evidence of declarations by the 
trader on his arrest at the suit of the defendants after the delivery of the 
goods, and after primd facie evidence of an act of bankruptcy committed 
previous to the delivery, in order to show that the delivery was under pres- 
sure. The plaintiff had a verdict (c). 

For the evidence in an action of covenant by or against the assignee of a 
bankrupt, see tit. Covenant. 

BARGAIN AND SALE. Fm/« Index, Vol. I. 

BARON AND FEME. See HUSBAND AND WIFE. 

BARRATRY. See POLICY OF INSURANCE. 

BARRATRY. 

Upon an indictment for this offence, the prosecutor must give the de- 
fendant notice before the trial of the particular instances of barratry 
intended to be proved (cf). 

BARRISTER. See CONFIDENTIAL COMMUNICATION. 



(tf) Vaughan v. Martin, 1 Esp. C. 440. 

(x) Harwood v. Keys, 1 R. & M. 204. 
In answer to the cases of Doicden v. 
Fowle, 4 Camp. 38, ¥oung v. Smith, 6. 
Esp.C. 121, Patteson, J. obsen'ed, that the 
latter were loosely stated, and that the de< 
claratlons mast have been made before the 
commission, and that the former was pro- 
bably decided by Mr. J. Dampler on the 
principle of the petitioning creditor's hav- 
mg indemnifted the sheriff. 

(y) Currie v. Child, 3 Camp. 283. 

(z) Milward ?. Forbes, 4 Esp. C. 172. 



(a) Supra, 11. 26. 104. 

lb) v. ShackUf, cor. Parke, B* 

Yorle spring assizes, 1835, where in an 
action by the assignees to recover deeds, 
the property of the banlerupt before his 
bankruptcy, wliich were alleged to have 
been deposited by way of lien, a declara- 
tion by the bankrupt before his bankruptcy 
was admitted, although the bankrupt had 
been called by the plaintiffs. 

(c) Dixon V. Sanderson, York Spring 
Assizes, 1836. 

{d) 5 Mod. 18 i 1 T. R. 754. 
o 2 



190 



BASTARDY : PROOF OF. 



Evidence 
to prove 
bastardy. 

OfachUd 
bom in 
wedlock. 



BASTARDY (e). 

The law, in its anxiety to protect the rights of children bom of women 
in a state of wedlock, presumes their legitimacy, unless the contrary be 
satisfactorily established by those who deny it. It has indeed, in some 
instances, been held that the presumption of legitimacy from non-access 
could not be overcome by any proof less than that of the absence of the 
husband beyond seas previous to and during the whole time of gestation (/). 
But it seems to be now settled, that if such non-access be proved as plainly 
shows that the husband could not in the course of nature have been the 
father of the child, the proof will suffice to bastardize the child (g) ; as, 
where it is proved that the husband had no access for more than two years 
previous to the birth of the child, until about a fortnight previous to the 
birth (A). 



(e) Where the issue is upon the general 
bastardy of a party to an action, whether 
real or personal, depending on the validity 
of the marriaf^e of the parents, the trial is 
by the certificate of the ordinary, (2 Roll. 
684, 1. 86. 686. 1. 7. 20. 3 Leo. 11). And 
as the certificate is peremptory, provided 
Judgment be afterwards given, or the party 
alleging bastardy be nonsuited, proclama- 
tions are to be made in the court and in 
Chancery, in order that all persons may 
have notice to attend the bishop (9 Hen. 
6. 11.) But where bastardy is alleged on 
special grounds not involving the marriage 
(2 Roll. 686. 3 Leo. 11,) or where general 
bastardy is not directly in issue (Ibid.) as 
in an action for calling the plaintiff a bas- 
tard, where the defendant Justifies (2 RoL 
686. Hob. 179,) or where the party al- 
leged to be a bastard is a stranger, is 
dead, or is an infant, or if the issue arise 
on a plea in abatement, the issue is to be 
tried by the country ; and the reason of 
this is, that the certificate of the ordinary 
would be peremptory, and in such instances 
the party or his representatives ought not 
to be concluded. See 2 Com. 684. Com. 
Dig. tit. Bastard, [D.] 2. For decisions 
depending on the effect of a foreign mar- 
riage, see tit. Hbir.— Makriaob.- — 
Pbdigreb. 

An unborn illegitimate may take by par- 
ticular description before its birth. Dato~ 
ton V. Dafoton^ 6 Mad. 292. 

The testator being at the date of the 
vnll married, and having no legitimate 
children, after providing for his wife, and 
devising certain premises to A, X. for life, 
gave certain lands, upon trust, for the 
children which he might have by ^. X;, 
and living at his decease or bom within 
six months after ; upon the death of his 
wife he duly republished his will, and upon 
clear proof of his having acknowledged and 
treated the children of ^. X. as his own, 
and that they had acquired the character 
of reputed children, held that they took 
an estate under such devise. Adam v. 
Wakinson, 12 Pri. 471 ; afiirmlDg the 



decree in the court below. 1 Ves. Sc B. 
422. 

An order of filiation not expressly ad- 
judging the defendant to be the father, 
but only that the Court was satisfied of 
that fkct, was held to be sufficient ; so the 
stating generally the child to be charge- 
able, by reason of the mother's inability, 
without going on to state the circum- 
stances. R. V. Lewis, 1 Perr. 8c D. 112. 

An order of filiation at sessions upon 
the evidence of the mother, and corrobo- 
ration thereof, not stating it to be in some 
material particular, was held to be bad. 
Reg. V. Read, 1 Perr. & D. 413. 

(/) 4 Vfai. Ab. 21, [B.] pi. 3, 4, 6, &6. 

(g) PendreU v. Pendrell, 2 Stra. 926. 
R, V. BedaU, Str. 1076. B. R, H. 379. 
Stra. 61* 

(h) R. V. Luffe, 8 East, 193. In the 
case of the Banbury claim of peerage, the 
following questions were proposed to the 
Judges : — First, whether evidence may be 
received and acted upon to bastardize a 
child bom in wedlock, after proof given 
of such access of the husband and wi£e, 
by which, according to the laws of nature, 
he might be the father of such child, the 
husband not being impotent, except such 
proof as g^oes to negative the fact of gene- 
ratiug access. Secondly, whether such 
proof must not be regulated by the same 
principles as are applicable to the legal 
establishment of any other fiict 

On the 4th July 1811, the Lord Chief 
Justice of the Common Pleas delivered the 
following unanimous answers : First, ** That 
in every case were a cliild was bom in 
lawful wedlock, the husband not being 
separated from his wife by a sentence of 
divorce, sexual intercourse was presumed 
to have taken place between the husband 
and wife, until that presumption was en- 
countered by such evidence as proved to 
the satisfaction of those who were to de- 
cide the question, tliat such sexual inter- 
course did not take place at any time, 
when by such intercourse the husband 



OF A CHILD BORN IN WEDLOCK. 



197 



born in 
wedlock. 



Access is not to be conclusively presumed merely because the parties are Of a child 
within such distance as to render it possible under circumstances (t). 

Where bowever a husband and wife are proved to have been together at a 
time such that in the order of nature the husband might have been the 
father of the child, if sexual intercourse did then take place, intercourse is 
to be presumed, and it lies on those who dispute the legitimacy of the child 
to disprove the fact of such intercourse having taken place by evidence 
affording an irresistible presumption that it could not have taken place, 
and not by mere evidence of circumstances which may afford a balance of 
probabilities against the fact (k). 

If there be a separation by consent, the presumption of law will still be 
in fayouT of access and of legitimacy till the contrary be proved (J) ; but if 
there be a divorce a mensA et thoroy non-access will be presumed, for (as it 
is said) it will be intended that the parties obeyed the sentence of the 
Court (m). 

It has been held, from very early times, that issue bom during wedlock 
might be bastardized by proof of a natural impossibility that the husband 
could have been the natural father. In Foxcrqft's CoMe, 10th of Edw. 1 (n), 
where the husband was an infirm, bedridden man, a child bom within 
twelve weeks after the marriage was held to be a bastard. So it was held, 
where the husband was shown to be within the age of puberty (o). So 
where a husband was under the age of fourteen (p). But evidence that a 
husband was divorced from his first wife for impotence does not prove the 
bastardy of a child bom during the second marriage {q). 



eonld according to the laws of natore be 
the father of sach a child."— Secondly, 
'' That the presnmption of the legitimacy 
of a child bom in lawful wedlock, the 
husband not being separated from his wife 
by a sentence of divorce, could only be 
legally resisted by evidence of such &ct8, 
or circumstances, as were safflcient to 
prove to the satisfaction of those who were 
to decide the question, that no seznal in- 
tercouTse did take place between the hus- 
band and wife at any time, when by such 
interconrse the husband could by the laws 
of nature be the father of such child. 
That where the legitimacy of a child in 
such a case was disputed on the gpround 
. tliat the husband was not the &ther of 
such a child, the question to be left to the 
jury was, whether the husband was the 
father of such child : and the evidence to 
prove that he was not the father must be 
of such fiicts and circumstances as were 
sufficient to prove, to the satis&ction of 
the jury, that no sexual intercourse took 
place between the husband and wife at any 
time, when by such intercourse the hus- 
band could by the laws of nature be the 
father of such child.** 

(i) Clarrt V. Maynardy 6 Mad. 361. 

Ik) By Sir J. Leach, Head v. Headj 
1 Shn. & Stu. 154; S. C. 1 Turner, 130; 
and .see Morris v. JDavis, 3 C. & P. 427. 
And if the husband hate access, legiti- 
macy will be presumed although other 
persons are at the same time carrying on 
criminal intercourse with the wife. Cope 
V. Cope, 1 Mo. & R. 200; 6 C. & P. 608. 



Secta (it is said) where although the hus- 
band has opportunity of access, but where 
the wife is living in open and notorious 
adultery. For then it is said that if the 
husband on one single occasion only hadop* 
portunlty of access, and then at a time and 
under circumstances rendering it extremely 
improbable that he availed himself of the 
opportunity, those facts might perhaps be 
urged as a legal ground for concluding 
that sexual intercourse did not take place. 
The case of Morris v. Davis was decided 
on that principle, per Alderson, B. 1 Mo. 
k R. 275. 

(0 St, Qeorge and St, Margaret , Salk. 
123. 

(m) Ibid, 

(n) 1 Roll Ab. 350. It does not ap- 
pear, from the abridged note of the case in 
Rolle, whether the inability existed at the 
time of conception; but it must neces* 
sarily be presumed that it was so proved, 
for (Le inability at the time of marriage, 
twelve weeks only before the marriage^ 
would be perfectly immaterial. 

(o) 1 Roll. Ab. 358. In Lomaxr, Holny- 
den, Str. 040^ evidence of inability from a 
bad habit of body was admitted ; but the 
evidence amounting to an imprdbabiliti$ 
only, and access being presumed from the 
visits of the husband, the evidence was 
deemed to be insufficient. 

(p) Year-book, 1 Hen. 6, 3, b. 

(g) Com. Dig. BASTAan [B.] 5 Co. 08, 

b.; 2 Leo. IGO. 173; Dy. 170, a. For, as 

is said, a man may be habUis ^ inhabilis 

diversis temparibus, and this whether the 

o 3 



Of a child 
born in 
wedlock. 



198 BASTARDY, PROOF OF. 

Where the husband is within the realm, it is not incumbent on the party 
alleging bastardy to prove that the husband could not by any possibility 
have had access to the wife ; it is sufficient to adduce such circumstantial 
evidence as satisfies the minds of the jury (r). 

The removal of the husband to a place distant from the wife, her co- 
habiting with another man, and the fact that the son, whose legitimacy is 
questioned, took the name of the latter from his birth, which he and his 
descendants afterwards retained, is strong evidence to prove the illegiti- 
macy («). So it may be proved that the mother was a woman of ill fame (t). 

In Lomax v. Holmden (m), the marriage being proved, and evidence given 
that the husband was frequently in London, where the mother lived, so 
that access must be presumed, the defendants were admitted to give evi- 
dence of his inability from a bad habit of body, but the evidence showing 
an improbability only, the plaintiff had a verdict (x). 

Where the birth occurs so soon after the marriage as to show that the 
conception was an^e-nuptial, that circumstance will not affect the legiti- 
macy ; but that case stands upon its own peculiar ground. The marriage 
of the parties is then the criterion of legitimacy ; at least it raises a pre- 
sumption that the husband was the father of the child (y). In this respect 
oar law adopts the rule of civil law, according to which the offspring was 
legitimate if the parents married at any time before the birth (z). It seems, 
however, that in such case it is competent to prove that it was impossible 
that the husband could have been the father, for a stronger presumption 
cannot arise in such a case than is made in favour of a child conceived after 
wedlock (a). It is held, that although the wife was pre-contracted, or 
within the prohibited degrees of consanguinity or affinity, yet if she be not 
afterwards divorced, the issue will not be bastards (b) ; and after the death 
of the parties the marriage cannot be drawn into question to bastardize the 
issue (c). 

Although there has been an actual marriage, the issue may be bastard- 
ized by proof that the marriage was actually null and void ; as by evidence 
that one of the parties had a wife or husband still living (jd) ; or by proof of 
a divorce a vinculo matrimonii (e). But a divorce cannot be prosecuted after 
the death of the parties (f). Nor can a marriage be drawn in question 
upon any collateral surmise after the death of either of the parties, such as 
that it was incestuous (g), in order to bastardize the issue. The effect of 
sentences in the ecclesiastical courts has already been considered (A). 



divorce was cautfi impotentuB quoad hane, 
or propter perpetuam impotentiam (Mo. 
227), 1 And. 106 ; 2 Lev. 169. 

(r) Goodrighty, Saul, 4T. R.d56. And 
see R. V. Bedall, 8tr. 1076. 

(s) 4 T. R. 356. And a new trial was 
granted, the judge on the first having in- 
formed the jury that the posHbility of ac- 
cess must be negatived. 

(0 PendrellT. Pendrdl, 2 Str. 925; 
B. N. P. 1 13. 

(w) B. N. P.113. 

{x) Lomax v. Holmden, 6 Geo. 2, at 
Bar. Str. 940; B. N. P. 113. 

(y) See the observations of the Judges 
in B. V. Lvffe, 8 East, 193. 

(2) See 8 East, 210. 

(a) And see Foxcr<^*8 Case, above 



cited, 1 RoU. Ab. 859. But see 1 Roll. 
358, 1. 20. 

(b) 1 RoU. 357, 1. 42. 45. 

(c) Ibid ; and Com. Dig. Bastard [B]. 
But the marriage may, after the death of 
the parties, be proved to be void. 

(d) See Marriage. — Pbdigreb. — 
Polygamy. 

(e) 2 Roll. 586, 1. 20. For the causes of 
such a divorce, see Com. Dig. Baron and 
Feme, [C] 1. ; §• supra, V. I. Ind. tit. 
Judgment, as to the efibct of a judgment 
in the spiritual court. 

(/) 1 RoU. 360, H. ; 1 Salk. 21 ; Com, 
Dig. Baron and Feme, [C] 6. 

(g) Carth. 271; Comb. 200; 4 Mod. 
182. 

{h) Supra, Vol. I. Ind. tit. Judgments, 



BASTARDY : COMPETENCY. 



109 



In the case of a posthumous child (i), its legitimacy appears to be a posthn- 
question of fact to be tried by a jury (A), unless it appear to be manifestly mous child, 
impossible^ according to the course of nature, that the child can be legiti- 
mate. 

A case is mentioned in the books (/), where the child was found to be 
bom eleven days past uUimum tempus legitimum muUeribus pariendi constitU" 
turn, and because of that fact, et quia per veredictum juratorum invenitur 
quad prcsdictits Robertus (the husband), non Itabuit accessum ad prcedictum 
Beatrkem per unam mengem ante mortem suam per quod magU prcBSumiiur 
contra pradictum Jffenricum (the issue), therefore the brother and heir of 
Robert had judgement to recover in assize ; and L. C. J. Rolle adds a note 
to that case, that the jury found that the husband languished of a fever 
long before his death (m). Hence it appears, that in addition to the mere 
presumption, from the interval which elapses between the death of the hus- 
band and birth of the child, other circumstances are admissible to confirm 
that presumption. AncJ in PendreUv. PendreU(n) if was held that the 
party who disputed the legitimacy might show that the mother was a 
woman of ill fame. 

Where a woman marries so soon after the death of the first husband that 
it is uncertain which of the two husbands is the father, it is a question of 
fact to be tried by a jury {o). 

Either of the parents is competent to prove the bastardy of a child for Compc- 
want of a legal marriage, although such evidence is open to much observa- ^' 



(») Ahop V. Stonep, 17 J.— B. R. Co. 
Utt. 123, b. by Hargrare and Butler, in 
the note. The wife, who was, it seems, a 
lewd wonuui, was delivered of a child forty 
weeks and ten days after the death of the 
husband, and it was held to be legitimate 
(Hale's MSS.) So where the child was 
born forty weeks and eleven days after the 
death of the first husband. 18 Rich. 2, 
Hale's HSS. See Cro. Jac. 541 ; Godb. 
281; Pahn. 9. 

{k) It has been quaintly said that the law 
does not appoint any certain time for the 
birth of a child, and that it is sufficient for 
the purpose of legitimacy if it be bom 
within a few days after the forty weeks, if 
it can be proved by circumstances to be 
the issue of the husband (1 Rol. 35G, 1. 10 ; 
2 Cro. 541 ; Pal. 9). The Roman law was 
very liberal in this respect. The Decemviri 
allowed that a child might be bom in the 
tenth month ; and although a law in the 
Digest excluded the eleventh, yet the em- 
peror Adrian, after consulting with philo- 
tophers and physicians, decreed even to 
this extent, where the mother was of good 
and chaste manners (Dig. 1. 4. 12). See 
the note by Hargr. & Butler, 1 Inst 123, b. 
from which it appears that the judges of 
Friesland in one instance allowed to the 
extent of twelve lunar months, minug three 
days. It is not probable that an English 
jury would go quite so far. 

The very learned editors of Lord Coke's 
Institutes procured the following informal 
tion from Dr. Hunter. — ** 1. The usual pe- 



riod of gestation is nine calendar months ; 
but there is very commonly a difference of 
one, two, or three weeks. 2. A child may 
be bom alive at any time from three 
months, but we see none bom with powers 
of coming to manhood, or of being reared, 
before seven calendar months, or near that 
time; at six months it cannot be. 3. I 
have krunon a woman bear a living child 
in a perfectly natural way fourteen days 
later than nine calendar months, and be- 
lieve two women to have been delivered of 
a child alive in a natural way above tea 
calendar months from the hour of concep- 
tion." 

Lork Coke lays it down as a peremptory 
rule, that forty weeks is the longest time 
to be allowed for gestation (Co. Litt 123) ; 
this, however, seems to be without founda- 
tion. Sec the note by Hargr. & Butler, 
Co. Utt. 128, b. 

7) Roll. Ab. 356. 

(m) RoU. Ab. 356. 

{n) 2Str.925. 

(o) Hale's MSS. Cro. J. 615; Which. 71 ; 
Litt. R. 177. Thecar marries a lewd wo- 
man, but she doth not cohabit with him, 
and is suspected of Incontinency with Dun- 
comb ; Duncomb, within three weeks after ' 
the death of Thecar, marries her; 281 days 
and 16 hours after Ids death she is delivered 
of a son ; and it was agreed, that though it 
was possible that the son might be begotten 
after the husband's death, yet, being a ques- 
tion of fact, it was tried by a Jury, and the 
son was found to be the issae of Thecar. 

o4 



i; 



200 



BASTARDY : COMPETBNCY. 



Compe- 
tency. 



tion (p). It has been said, that the mother being a married woman, is 
not competent to prove the non-access of the husband, as it seems, upon a 
principle of public policy, which prohibits the wife from being examined 
against her husband in any matter which affects his interest or character, 
unless in cases of necessity {q) ; and on that account it is at all events allow- 
able to examine her as to the fact of her criminal intercourse with another, 
since it is a fact which must probably be within her own knowledge and that 
of the adulterer only (r). 

But the parents are competent witnesses to prove the legitimacy of their 
children (s). 

So the mother is competent to prove the access of the husband {t\ 

The declarations of the wife during her lifetime are not admissible in 
evidence, except for the purpose of contradicting her (u). Such declarations 
are not admissible to prove her son not to be the son of her husband, but 
of another man (x). « 

As cohabitation and repute are evidence to prove the fact of marriage, so 
declarations by deceased parents, as to their being or not being married, 
are evidence as accompanying and explaining such cohabitation, and the 
presumption arising from cohabitation is either strengthened or destroyed 
by such declarations (y). So such declarations are admissible to prove whe- 
ther the child was bom before or after marriage ( j), but they are not admis- 
sible to prove the illegitimacy of a child born in wedlock (a). 

The declaration by a deceased husband that his wife was a legitimate child 
is evidence ; for it is probable, that although not connected with her by 



(p) 6 T. R. 380, 331. Or to prove the 
legitimacy (Ibid.) It is said that the sole 
evidence of the mother, a married woman, 
shall not be sufiicieDt to bastardize her child. 
Ca. T. H. 79. B, r. Rook, 1 Wlls. 340. See 
also Standen v. Standen^ Peake's C. 32 ; 
Standen v. Edwardt, 1 Yes. jun. 133. 

(q) R y. Sourton, 5 Ad. & £11. 180. R. 
V. Bedail, 3 Str.941. 1076 ; R.T. Hardw. 
379. In the case of Goodright v. Most, 
Cowp. 591, Lord Mansfield says, it is a 
rule foonded in decency, morality, and po- 
licy, that the parties shall not be permitted 
after marriage to say that they had no 
connexion. See R. v. Beading, 1 Eaut, 
180; B. N. P. 112. The rule is the same 
though the husband be dead at the time of 
giving her testimony. R. v. Inhab. ofKea, 
11 Bast, 132. 

(r) See Ld. EUenborongh's observations, 
R, V. Luffe, 8 Bast, 202, where an order of 
bastardy was stateid to be made upon the 
oath of the wife as otherwise, it was held 
to be good, since it was to be presumed that 
the non-access of the husband was proved 
by other witnesses, or if proved by her 
also, that the judgment of the Justices was 
founded on the other proof. R, v. Luffe, 
8 East, 193. And see R, v. Lubbenham, 
4 T. R. 261. 

(s) InXomax v.Xcmuur, (cor. Ld. Hard- 
wicke,) C. T. H. 380, the mother was admit- 
ted to prove the marriage ; and in an eject- 
ment against Sarah Brodie, Hereford,1744, 
Wright, J. admitted the fother to prove the 



daughter legitimate, her title being as heir- 
at-law to her mother. And see Stapleton v. 
Stapleton, Ca. T. Hardw. 277 ; Lord ValeU' 
tia's Case, in D. P. Cowp. 593; Sacheve- 
rrfr*Ca*e, B.N.P.241. 

(t) PendreU v. Pendrell, cor, Ld. Baym. 
8tr.925; B.N.P.287. 

(m) 2 8tr.925; B.N. P. 113. 

(x) R. V. Cope, 1 Mo. & R. 276. 

(y) B. N. P. 294, where it is said that 
such declarations are not to be given hi 
evidence directly, but may be assigned by 
the witness as a reason for his belief one 
way or other. In May v. May, B. N . P. 1 1 2, 
on a trial at bar on an issue out of Chan- 
cery, the preamble of an act of parliament, 
recitinf? that the plaintiff's &ther was not 
married, to the truth of which he had swore, 
was given in evidence; yet, upon proof of 
constant cohabitation, and of his having 
always acknowledged her to be his wife, 
the marriage was established. But where, 
in a settlement case, there was no evidence 
either as to the parentage, place of birth, or 
illegitimacy, except the testimony of the 
taXher, who denied any marriage, the eonrt 
of K. B. held, that however difficult it might 
be to admit his evidence to bastardize a re- 
puted legitimate child, yet, as all depended 
upon his testimony, the whole must be taken 
together. Parish of St. Peter, Worcester , 
V. Old Sioiftford, B. N. P. 112. 

(2) Goodright y,Moss,OiW^.Sdl. R. 
V. Brandey, 6 T. R. 330. 

(a) Ibid, 



BILLS OF BXCHANOB. 



201 



bloody he would know the fact (b). And so would the declarations of mem- 
bers or relations of the family, or perhaps of others living in habits of inti- 
macy with them (e). 

One charged as a reputed father of a bastard cannot be compelled to give 
eridence tending to prove the fact (d). 

Where one or more justices have power to examine in a case of bastardy, 
tbey have incidentally power to compel the woman to answer (e). 

In the case of the King v. Bavenstone (/), it was held, that the exami- 
nation of a woman pregnant of a bastard, was admissible evidence after 
her death against the party whom she charged as the putative father, 
although the proceeding was ex parte, the party charged not being pre- 
sent (g). This decision, however, conflicts with general principles, and the 
cases of depositions before magistrates under the stat. of Philip & Mary, 
upon which the court are reported to have relied in the above case, are in 
direct opposition to it. 

As to the competency of inhabitants of a parish in cases of bastardy, 
see tit. Inhabitaht. — Intbrbst. 

BILLS OF EXCEPTIONS. See Vol. I. and Indbx. 

BILLS OF EXCHANGE. 

Under this head may be considered, 

I. The BviDEncB in av action on a bill or note, p. 302. 
II. The evidence in defence, p. 241. 
III. The cohpetbnoy of witnessbs, p. 257. 
lY. The effect of a bill or note in eyidbnce, p. 261. 

I. Actions on bills of exchange (A) differ from actions upon parol con- 
tracts, principally in these circumstances, 1st, it is in general unnecessary 
for the plaintiff to prove the consideration for which the bill or note was 



(b) Vowels V. Young, 15 Ves. jon. 148. 
(<?) 3T. R. 728; B.N.P.205; 1 M. & 
S. 68Q. Supra, Vol. I. Index, tit Heab^ 

SAY. 

{d) B. V. St, Maryft, Nottingham, 13 
East, 58, in note. 

(e) JR. ▼. Jad^Mon, 1 T. R. 665. And if 
»he refuse, may conunlt until she answer. 
Ibid, But one Justice has no such power 
under the stat 6 0. 8, c. 31. See B. v. 
Beard, 5 T. R. 373. B, v. Wett, 6 Mod. 
180 ; BUlings v. Prinn, 2 W. BL 1017. 

(/) 5 T. B. 873. Infra, tit Deposi- 
tions. 

{p) In the subsequent ease of The King 
v. Clayton, 3 East, 68, the case of The 
King v. Bavenetone was referred to by Ld . 
Ellenborongh, C. J. as an authority. In 
the case of B, v. Clayton, which was one of 
an order of bastardy made by two justices, 
which had been conflnned on an appeal to 
the sessions, it appeared tliat the original 
order had been made on the oath of B, T, 
and the examination of Mary Cole (the 
mother) talcen before another justice. The 
title of the orighial order recited that Mary 



Cole was since deceased. And the court 
held the order to be good, by intendment 
tiiat the examination of M. C. had been 
taken in writing, and tliat the examination 
had been verified by the oath of B, T, 
Note, that stress was laid on the foct that 
the second order was made on appeal to the 
sessions, where the objection for want of 
appearance, and for want of proof that the 
woman was dead at the time, might have 
been proved if well founded. The same 
reason, it is obvious, would apply to the 
objection that the examination took place 
in the absence of the party charged. 

(h) Upon the question, whether a bill of 
exchange be joint or several, see Collins v« 
Prosser, 1 B. & C. 682. A note not pay- 
able at all events, but intended as a set-off, 
is not a promissory note. Clarke v. Per* 
civcU, 2 B. & Ad. 660. An instrument, 
whereby the party promises to pay a sum 
with interest, " and all fines according to 
rule," caimot be declared on as a note. 
Ayrey v. Feamsides, 4 M. & W. 168; 
and 6 Dowl. 654. 



302 



BILLS OF EXCHANGE : PRODUCTION. 



Primary 
liability. 



Secondary 
liabiUty. 



Collateral 
liability. 






a note. 



Prodactioii 
or proof of 
destruc- 
tion. 



given, the bill or note being in itself primd fade evidence of a sufficient 
consideration ; and Sdly, because the interest in the bill, and the right of 
action consequent upon it, is of a transferable nature ; so that in addition 
to the undertaking of the defendant, which is usually a consequence of his 
being a party to the bill, it is in many instances necessary to prove the 
plaintiff's title to sue. 

Actions brought in respect of bills of exchange or promissory notes are 
either founded on the instrument itself, or upon a collateral liability. 

Where the action is founded on the instrument itself, the liability of the 
defendant is either, Ist, primary and immediate upon his direct under- 
taking, where it is brought against the acceptor of a bill or maker of a note ; 
or, 2dly, it is a secondary and conditional liability of a drawer or indorser 
consequent upon the default of the acceptor or maker ; or, 3dly, the liability 
is consequent upon the party's own default in not paying the bill according 
to his undertaking ; as, where the action is brought by a drawer or indorser 
who has been compelled to take up the bill against the acceptor, or by the 
acceptor, who has paid the bill against the drawer. 

The proofs will be considered in the following order : 

1. Proofs in an action by a payee"* , . « , .„ , * 

or bearer (0- - - - - - • - J ^n acceptor of a bill or maker of 

2. - - - by an indorsee [k) - -J 
8. - - - by a payee (/) - 

4. - - - by an indorsee (m) 

6. Presumptive evidence (n). 

6. Proofs by a drawer or indorser (o) v. An acceptor. 

7. - - - by an acceptor (p) - v, A drawer. 

8. Proof of damage (9). 

9. Proofs in defence (r) ; want of consideration («) ; or of value given (t) ; 

illegality of consideration (u) ; discharge by satisfaction, release, 
&c.(x); laches (y); giving time(z); waver (a); indorsement of bill 
after it is due (b) ; alteration of bill (c). 

10. Competency of witnesses, declarations, &c. (d). 

11. Effect of bill, or note in evidence inpayment, &c.(e). 

In an action by the payee against the maker of a note or acceptor of a 
bill, the direct proofs (f) are, 1st. By the production of the note or bill, 
or proof of its destruction, &c. 2dly. Proof of the making of the note, or 
of the drawing and acceptance of the bill. 8dly . In some instances proof of 
the performance of conditions precedent or presentment. 4th]y. In some 
cases of the identity of the payee, or title of bearer. 

1st. By the production of the bill or note. The ordinary proof of loss, in 
order to warrant the introduction of parol evidence of an instrument, is in 



v. 



The drawer of a bill. 
fThe drawer of a bill. 
^' ^An indorser. 



(i) 202. 
(A) 214. 
(0 221. 
(m) 283. 
(n) 237. 
(o) 239. 
(p) 239. 
(q) 240. 
(r) 241. 
is) 242. 
(0 243. 
(tt) 245. 



(x) 249. 
iy) 250. 
(2) 250. 
(a) 252. 
{b) 253. 

(c) 254. 

(d) 257. 

(e) 261. 

(/) Under the new mles the general issue 
cannot be pleaded, and of coarse no part of 
the ordinary proof of title need be prored 
which is not pnt in issae by some traverse. 



BILLS OF exchange: primary liability. 



203 



this case frequently insufficient (g), the instrument being of a negotiable 
nature, such proof must be given, where it is not produced, by evidence of its 
destruction (A), or otherwise, as shows that the defendant cannot afterwards 
be compelled to pay the amount again to a bortd fide holder. -In the absence 
of such proof the plaintiff cannot recover on the special count, or on the 
money counts, or upon the original consideration for which the bill or note 
was given, even although he has tendered to the defendant a bond of indem- 
nity, for it may be still in existence, and the defendant may again be called 
upon to pay it (t). But where a bill has been specially indorsed to the plaintiff, 
(and for the same reason, where it is made payable to the plaintiff specially,) 
the plaintiff may prove that it has been stolen, without having been indorsed 
by him, and recover on giving parol evidence of the contents (A). 

In the case of a foreign bill drawn in sets, both the sets should be produced. 

2dly. The next step is to prove the making of the note, or the acceptance, 
(and in some cases the drawing) (/) of the bill. — Where the instrument has 
been signed by the defendant, and is unattested, the usual proof is by evidence 
of his hand-writing, or by evidence of his acknowledgment that it was signed 
by him (m). If the instrument has been attested by a subscribing witness, 
that witness must be called (n). Where the declaration alleges that the 
note was made, or bill accepted by a party, his proper hand being thereunto 
subscribed, it has been said that proof of the hand-writing of the party can- 
not be dispensed with, and that a precise allegation is essential, in order 
that the party may be prepared to show, if such be the fact, that no autho- 



Produc- 
tion. 



Foreign 
bill. 

Proof of 
the making 
and ac- 
cepting. 



{g) See 1 Eap. C. 60. 2 B. & P. 03. 
1 Atk. 446. Ld. Raym. 731. For the 
usual proof to warrant the introduction of 
secondary eyidence, see above. Vol. I. Ind. 
tit. Sbcondabt Evidence. 

(A) As that the defendant tore his own 
note of hand, 1 *Lord Ray. 731. 

(t) Pienon v. HtUchinson, 2 Camp. 21 1 ; 
6Esp.C.126; SCamp.324; 4Tbant. 602. 
Bangeffield v. WiOfy, 4 Esp. 150. Han- 
aard y. Robvnwn^ 7 B. & C. 00. Al- 
though the bill was lost after it became 
due. lb. Pootey.^mi^A, Holt, 144. The 
remedy of the loser of the note is in equity 
(1 Ves. 341. 6 Yes. 812. 16 Yes. 430) ; 
and in general the holder of a bill cannot 
insist on payment from the acceptor without 
offering to deliyer up the bill ( Hantard y. 
RoHruon, 7 B. & C. 00. Champion y. 
Terry, 7 Moore, 130. Powell y. Roachy 
6 Esp. C. 76) ; and cannot, haying lost the 
bill, though after it has become due, re- 
cover upon it, although an indemnity has 
been offered {Ih.) An express promise to 
pay the contents of a lost bill, without 
some new consideration, is yoid. ( Davis y . 
Doeidy 4 Taunt 602.) An indorser in blank 
cannot recover, even where the bill has 
been lost ailer notice of trial given, al- 
though more than six years have elapsed 
since the bill became due. Poole v. Smith, 
Holfs C. 144. So though the half of a 
bank-note has been lost. Mayor y. John" 
ton, 3 Camp. 324. Where the defendant 
had admitted that he owed money on 
the bill, which wss in his own possession, 
Abbott, C. J., held that it was evidence 



under the common counts without notice to 
produce the bill. Fryer v. Browne, R. & 
M. 146. 

{K) Long and others y. BaUlie, Guild. 
Dec. 1806, cor. Ld. EUenborough, 2 Camp. 
214, (n.) And see Smith y. Clarke, Peake's 
C.225. 

(I) The acceptance admits the hand -writ- 
ing of the drawer, and also the procuration, 
if the bill be drawn by procuration. Port" 
house y. Parker, 1 Camp. 82. Robinson v. 
Yarrow, 7 Taunt. 466. And this excludes the 
acceptor from insisting that a bill purport- 
ing to be drawn by a firm, was drawn by a 
single person. JBom v. Clive, 4 M. & S. 13. 
Or that the drawer's name is forged, lb. ; and 
Smith y. Chester, 1 T. & R. 666. Or that 
he is an infant. Taylor v. Croker, 4 Esp. 
C. 187; and see ShiUtz v. Astly, 7 C. & 
P. 90. 

(m) See tit. Admissions. In an action 
by the indorsee against the acceptor, the 
witness negativing the hand-writing to be 
that of the drawer, held that some proof 
of the hand-writing ought to be given, not- 
withstanding the defendant had acknow« 
ledged it to be his acceptance. Allport v. 
3feeA,4C. &P. 267. 

(n) Sttpra, Yol. I. Ind. tit. Attesting 
Witness. A note for less than 6/. if not 
attested, is yoid by the stat. 17 Geo. 3, 
c. 30, 8. 31. If the note appear to hayc 
been attested, the attesting witness must be 
called, the adversary is entitled to have 
any writing on the face of it read. Richards 
y. Frankum, C. & P. 221. 



204 



BILLS OF EXCHANGE : PRIMARY LIABILITY. 



Proof of rity or procuration has been given (o). Some evidence as to the identity of 
acceptance, ^j^^ defendant with the party whose hand-writing, or whose authority to 
sign the note, is proved^ is also necessary (p). 

An acceptance (q) of a bill in blank without the name of a payee is an 
authority to n band fide holder to insert a name (r). 

By the stat 1 & 2 Geo. 4, c. 78, s. 2, no acceptance of any inland bill («) 
of exchange shall be sufficient to chaise any person, unless such acceptance 
be in writing on such bill, or if there be more than one part of such bill, on 
one of the said parts. The defendant, by the act of acceptance (t) admits the 
signature of the drawer, and his ability to draw the bill (u) ; but where the 
acceptance is made without sight of the bill, it is necessary to prove the 
drawer's handwriting {x). 

An allegation that a bill was drawn by certain persons using the firm 
of A. & Co, is satisfied by a bill drawn by A, in the name of such a firm^ 
payable to our order, although A, has no partner (y). 
Acceptance If the action be against severed as makers or acceptors, the hand- writing 
by several, of each must be proved (z) ; or if it be signed by one only in the name of the 
firm, it must be proved that they were partners (a) at the time of the 
acceptance. 



(o) i>t^v.Tra«on,5E8p. C.180. But 
where the drawer's name had been indorsed 
by the wife, Ld. EUenborough was inclined 
to think that snch an allegation wonld be 
satisfied by proof that the name had been 
written by an authorized agent {Helmtley 
V. Loader t 2 Camp. 450) ; and where the 
declaration alleged that the defendants 
made a note in their own hands, &c. and 
the note had in fact been subscribed by one 
In the name of the firm, Ld. EUenborough 
refused to nonsuit the plaintiffs. Jones v. 
Mars, 2 Camp. 305. Where the defendant's 
name had beien signed by his wife, it was 
held that it was not sufficient to show that 
she had managed his business as an inn- 
keeper, and applied the proceeds in dis- 
charge of debts incurred in the business, 
and Uiat three months afterwards she had 
signed other notes, the amount of which 
was paid to his creditors. Ooldstone v. 
Tovey, 6 Bing. N. C. 98. 

( p) Middleton v. San^ford, 4 Camp. 34; 
B. N. P. 171 . See Nelson v. WhUtal, 1 B. 
& A. 19. 

(g) Vide supra, 141. In an action 
against the acceptor of a bill for 46 L, with 
the common counts ; plea, that the defendant 
accepted a bill drawn on him for 60 Z. in 
satisfaction of the plaintiff's demand; held 
not sustained by evidence that the defendant 
transmitted to the plaintiff a blank accept- 
ance, with 602. in the margin, but which 
when produced had been altered to 462. 
Baher v. Jubber, 1 8c. N. 8. 26; and 6 
Dowl. (p. c.) 538. 

(r) Crvehley v. Clarence. 2 M. & 8. 90. 
Attwood V. Griffln, 1 Ry. & M. 425. 

(s) In the case of foreign bills a collateral 
acceptance is still sufficient. 

{t) Sir, 442. 668. 946. Taylor v. Croker, 
4 £sp. C. 187. Robinson v. Yarrow, 7 
Taunt. 445; 1 Moore, 150; Burr. 1354; 



Chitty, O. B. 286; 1 T. R. 666. But 
where the bill is payable to the drawer's 
order, proof of acceptance is no evidence 
of indorsement by the drawer (Peake's C. 
20). The acceptor is concluded by his 
acceptance as to the hand writing c^ the 
drawer, although the bill be forged. Smith 
V. Chester, 1 T. R. 664. 

(u) Consequently it is no defence on the 
part of the acceptor to show that the bill 
was drawn by an infant (Taylor v. Croker, 
4 Esp. C. 187) ; or that the bill is forged 
(6 Taunt 83; 4 M. &; 8. 15; Leach v. 
Buehanan, 4 Esp. C. 226); or by one 
without the authority of his supposed 
principal (Porthouse v. Parher, 1 Camp. 
C. 82) ; or by a single person, when it puiw 
ports to have been drawn by several persons 
composing a firm {Beus v. Clive, 4 M. ft 8. 
13). 8o if the party acknowledge the 
acceptance to be in his hand-writinff he 
cannot afterwards set up a forgery of the 
bill as a defence. Leadi v. Buchanan, 4 
£sp. C. 226. 

(x) Peake's L. E. 220; Bayley, O. B. 
219. It seems that the word accepted 
written on the bill is sufficient without the 
acceptor's signature. JDufaur v. Oxenden, 
1 M. & R. 90. And an acceptance in blank, 
the bUl being afterwards drawn in pni^ 
snance of the acceptor's authority, is suffi- 
cient. Leslie v. Hayings, 1 M. & R. 
119. 

(y). Bass V. Clive, 4 M. & 8. 13. 

(z) Peake, 18; Chitty, 627, 9th edit 
Orayy, Palmers, 1 Esp. C. 135; B. N. P. 
279. 

(a) Every partner has an fanplied autho- 
rity to bind his co-partners by the drawing, 
accepting, and indorshig of bills for com- 
mercial purposes (7 T. R. 210; 10 East, 
264; 13 East, 175). Hence an aeceptanee 
by one partner in the name of the firm, is 



PATBB ▼. ACCEPTOR OR MAKER. 



205 



The implied eutliority of one to draw or accept a bill in the name of the Acceptance 
firm, may be rebutted by proof of fraud, or of notice to the party, that the by several. 
other partners wonld not be responsible for bills so drawn or accepted (6). 

Where the action is against A, and B, as acceptors of a bill, and A, suffers 
judgment by default, the signature of A, must be proved as well as that 
of B. (c). 

An admission by one defendant that he accepted the bill will not be 
evidence against the co-defendants, without preyious proof that they were 
partners at the time (d), and then his admission of the acceptance in the 
name of the firm will be evidence against all, even although the partnership 
was dissolved previous to making the admission* 

Where all the partners except the defendant have been outlawed, it is 
still necessary to prove a joint acceptance by all; but in such a case Lord 
EUenborough held, that a letter written by that defendant, in which he 
admitted the partnership, was evidence of the fact ; for in an action by him 
against the rest for contribution, the record in the present action would not 
be evidence against the rest to prove the partnership, and it would be 
necessary to prove the fact aliunde (e). 

The provisions of the bank-act do not apply to a note issued by a mere 
commercial firm, though consisting of more than six members (/*). 



primA faeie evidence of the assent of all 
(13 East, 175. Pinkney v. Hall, 1 Salk. 
126). But this presumption, arising from 
the relative situation of the parties (see 
tit. Admissions), is liable to be rebnt- 
ted, by proof that the party insisting npon 
the usual presumption, knew that the part- 
ner had no authority, as by proof of express 
notice to that effect. Where one partner 
gave express notice that he would not be 
responsible for bills signed in the name of 
the firm, it was held that he was not bound 
by a security g^ven to the party to whom 
such notice was given, although the latter 
advanced money upon it for the payment 
of partnership debts, and although part 
was BO applied {Lord ChUhoay v. Matthew, 
10 East, S64) ; or by proof of covin be- 
tween the partner who signs the bill or 
note, and the party who takes it (Ridley 
V. Taylor, 13 East, 175). To prove fraud, 
it is not, it seems, sufficient to show that 
the holder took the bill in payment of the 
separate debt of the partner (Ibid.) See 
OckUng v. Davii, 8 Gl. & J. 218; Bx 
parte Hutbandt, 2 Gl. & J. 4. But the 
giving a bill in payment of the debt of two 
partners, contracted previously to their 
partnership with a third, has been held to 
be fraudulent as against the third (Shirr^ 
V. Wilket, 1 East, 48. See Stoann v. Steele, 
7 Bast, 210 ; Bx parte Bonbonus, 8 Ves. 
Jun. 642; Williams v. Thomas, 6 Esp. C. 
18; 16 Yes. 286; 16 Bast, 10; Pinkney 
V. HaU, Salk. 126; 1 Camp. 108. 384. 
403). Where a partner accepted a bill in 
the name of the firm, but not in a partner- 
ship transaction, it was held at Nisi Prius 
that an indorsee could not recover on that 
acceptance against a dormant partner 
whose name did not appear, who was not 
known to be a partner, or where the bill 



was not taken onhiscredit(X2oy<iv. Ashley, 
2 C. & P. 138). In the case of a bUl drawn 
on several partners, an acceptance by one 
need not be in the name of the firm (Ibid,) ; 
but a promissory note drawn by one of 
several partners in his own name cannot be 
declared on as drawn by tlie firm, although 
given for a debt due to the partnership. 
S\ffJdn V. Walker and another, 2 Camp, 
308. 

(b) See the preceding note. See also 
Wells V. Masterman, 2 Esp. C. 731. Bx 
parte Ayrer, 2 Cox, 312. It lies on a sepa- 
rate creditor, who takes a partnership secu- 
rity for payment of his separate debt, if it 
be so taken, and there is nothing more in 
the case, to prove that it was griven with the 
consent of the other partners. Per Master of 
Rolls, in FranklandY. M'OtKrty, 1 Knapp, 
301. One partner having become bankrupt, 
a solvent partner may still bind the firm by 
accepting a bill for a debt previously due 
to the firm, such bill being in the hands of 
a bonAfide indorsee. Bx parte Robinson, 
1 Mont. & Ayr. 18. See Wadbridge v. 
Svsann, 4 B. & Ad. 633. A member or 
director of a joint stock company has no 
implied authority to accept bills on the 
part of the directors. See tit Partners, 
and Branmh v. Roberts, 3 Bing. N. C. 
072; Bx parte Bllis, Mont. kB. 2410, 

(c) Bay. O. B. 227 ; 1 Esp. C. 136. 

(d) Gray v. Palmer, 1 Esp. C. 136. 
Wood V. Braddick, 1 Taunt. 104. 

(e) Songster v. Mazzaredo and others, 
1 Starkie's C. 161. 

(/) Wigcm v. Fowler and others, 1 
Starkie's C. 460, and afterwards by the 
Court of K. B. But a corporation not 
established for trading purposes cannot 
accept bills of exchange payable at a less 
period than six months from the date 



200 



BILLS OF exchange: primary liability. 



by an 
agent. 



Time of 



Proof of Where the acceptance is by means of an agent, the authority of the agent 

accep ce j^^^g^ ^^ proved (g). A letter of attorney from A, as executor, enabling B* 
to transact the executorship affairs, gives him an authority to accept bills 
of exchange drawn by a creditor relating to a debt due from the testator, 
so as to make A. personally liable (A). The agent who accepted the bill by 
the authority of another, is a competent witness to prove his authority (i). 
If the authority was in writing, the instrument must be produced and 
proved (k). 

Proof of an acceptance after the bill became due is sufficient (/)• Where 
acceptance. ^^^ executor declares upon promises to the testator, he must prove an 

acceptance in the lifetime of the testator. 
Proof of ^ collateral acceptance (m) may be proved either in writing (n), or by 

acceptance ^^^^^^^^e of an oral assent (o) ; and it is not necessary that the holder should 
be privy to such parol acceptance (/>). What amounts to proof of an 
acceptance is a question of law, and not of fact (q). If the acceptance be 
by parol, the witness must be produced who heard the defendant accept 
the bill ; and if it be in writing, it must be produced and proved ; and if 
attested, must be proved by the attesting witness. In general, a promise 
to accept an existing bill, if made upon an eiecuted consideration, or if it 
influence any person to take or retain the bill, is a complete acceptance as 
to the person to whom the promise is made in the one case, and the person 
influenced on the other (r), and all the subsequent parties in each («). 

Where the acceptance is by a letter collateral to the bill, the letter must 
be produced, and the hand-writing proved ; and evidence is also requisite 
to identify the bill in question with that mentioned in the letter. 

An assurance by a collateral letter that the bill shall meet with due honour. 



(JBroughton v. Manchester Watenoorks 
Company, 3 B. & A. 1 . It was there observed 
that in Wigan v. Fowler it did not appear 
on the fkce of the bill to be accepted by 
more tiian six persons. And mnble, a 
corporate body not CBtablished for trading 
purposes cannot without express authority 
bind itself but by deed (IbicL) ; and see 
Slarke v. Tfie Highgaie Archway Com" 
pany, 5 Taunt. 792. 

(g) 1 Esp. C.90, Chitty,O.B.28. As to 
proof of agent's authority, see tit. Agbnt. 
A secretary to a joint stock company has 
no implied authority to accept bills. 
Neale v. Turton, 4 Bing. 149. Where 
the declaration on a bill alleged it to have 
been drawn by one Hannah P. on, and 
accepted by the defendant, and afterwards 
indorsed by the said H. P. to the plain- 
ti£f8, the bill appeared to be indorsed *' for 
H. P.," in the hand-writing of one J. P. 
and a witness stated that his employers had 
dealings with a Mrs. P. and that he liad 
seen bills drawn and indorsed in the same 
form and hand-writing, which had been paid, 
and held that upon a question of authority, 
the statements of the witnesses were ad- 
missible, witliout the production of such 
bills ; and the Court after a verdict for the 
plaintiff, upon an affidavit that the real 
name was Hannah, and that the bill was 
drawn and indorsed by her son J, P., by 



her authority, refused a new trial. Jones 
V. Turner, 4 C. & P 204. 

(h) 2 H. B. 218. But see 6 T. IL 
691. 

(t) Supra, 41. 

(k) Ibid. 

(0 5 East, 614. 

(m) No such acceptance of an inland 
bill subsequent to the first of August 1821 
is valid. See the stat. 1 5c 2 G. 4, c. 78, 
s. 2, supra, 204. 

(n) 1 T. R. 182. 186. PUlans v. Van 
Mierqp,3Bmr,l6eQ. 

(o) Lumley v. Palmer, 2 Str. 1000. C. 
T. Ilardw. 74. 

(p) Powell V. Monnier, I Atk. 611. 
Wynne v. Raikes, 5 East, 614. Fairlee 
v. Herring, 3 Bing. 626. 

iq) 1 T. R. 182. 186. But see Reet v. 
Warwick, 2 StarUe's C. 411. B. under- 
takes to guarantee A.'b debt, and draws a 
bill on A,, which A. accepts; B, also 
writes an acceptance. B, is not liable as 
an acceptor ; it is a collateral undertaking 
for Uie debt of ^., which roust be specially 
declared on. 2 Camp. 447 ; Beawes, L. M. 
422. 

(r) Milne v. Prest, 4 Camp. 393. 

(s) Bayley on Bills, 78. 6 East, 614. 
Pierson v. Dunlop, Cowp. 671. Mason 
V. Hunt, Doug. 284. Clarke v. Cock, 4 
East, 76. 



PAYEE V. ACCEPTOR :— ACCEPT AKCE. 



207 



» an acceptance (l) ; and so is an assurance of the drawee, by letter, that Collateral 
the bill shaU be duly honoured (ti). So a letter by the drawee, stating that acceptance, 
the holder might rest satisfied as to payment, written after the bill was 
drawn, is an acceptance {x). But a promise to accept a non-existing bill is 
no acceptance (y). An indorsee may avail himself of that as an acceptance 
of which the drawer could not avail himself; as, where A, to give credit to 
B, made an absolute promise to accept his bill, and B. showed the letter 
upon the Exchange (z). 

Where the plaintiff, being unable to prove the acceptance of the defen- 
dant upon the bill, proved, that when the bill was taken to the defendant's 
house for acceptance, a clerk in the defendant's banking-house answered that 
the bill would be taken up when due, (the defendant not being at home,) it 
was held that the proof was insufficient, without showing that the answer 
was given by the drawee, or his authority {a), 

A direction on the bill to another to pay the sum out of a particular fund 
is an acceptance (b). So any words written upon the bill which do not 
negative its request, as "accepted "(c), "presented," "seen," or the day of 
the month, are primA facie a complete acceptance. Even a refusal to accept 
written on a bill, will amount to an acceptance, if it be shown to have been 
done with intent to deceive the party who presented it, and to delude him 
into the belief that the bill had been accepted (d). 

Where the drawee said on presentment of the bill, " there is your bill, 
take it, it is all right," it was held to be no acceptance (e). 

Where the drawee stated in his letter, " your bill shall have attention," 
the court held that the phrase was too ambiguous to amount to an accept- 
ance, in the absence of evidence to show that in mercantile acceptation the 
phrase amounted to an unequivocal acceptance (/*). 

Where there is no direct evidence of acceptance, presumptive evidence Presnmp- 
may be resorted to in proof of the fact ; for this purpose, the conduct of the *[^® ®^^" 
parties, especially if it be explained by mercantile usage and understanding, acceptance, 
is frequently very important. The fact that a bill sent to the drawee for 
acceptance has been detained by him, may be evidence of an acceptance ; 
but according to the usual course of commercial dealings, the mere neglect 
and silence of the drawee, or even a refusal to return the bill, or its actual 
destruction, does not necessarily make the drawee liable as acceptor (^). 



(0 Clarlte v. Cock^ 4 East, 57. So, this 
I accept, and you may call for it when you 
like. Canissa v. Lajios, 2 Knapp, 276. 
The drawer of foreign bills being arrested, 
said he would have accepted them when 
presented, but he had not the funds from 
France; that when he got the funds he 
would have paid them, but for some ex- 
pression of the indorsee, adding, that he 
told the clerk of the indorsee, that when 
he got the funds from France the bills 
ihonld be paid. It was held, that this 
was a good conditional acceptance, on 
which the defendant having got funds from 
France was liable. Mendizahel v. MaC' 
hado, 6 C. & P. 218. 3 M. & S. 831. 

(u) Powell V. MonnicTf 1 Atk. 611 ; 
5 East, 520. 

{x) Wilkinson v. Luitoidge, Str. 648. 
See also W^fnne v. Raikes, 5 East, 514 ; 
Clarke v. Cock, 4 East, 57. 



(y) Johnson v. Collins, 1 East, 08. 

(z) Per Ld. M ansfield, in Mason v. Hunt, 
Dougl. 284. Cowp. 571. Le Blanc, J. lu 
Johnson v. Collins 1 1 East, 105. Clarke v. 
Cock, 4 East, 70. But see MUne v. Prest, 
4 Camp. 303. 

(a) Sayer v. Kitchen, 1 Esp. C. 200. 

(h) Moor V. Withy, B. N. P. 270. 

(c) See Pillans v. Van Mierop, 3 Burr. 
1603; Mason v. Hunt, Powell v. Monnier, 

1 Atk. 611 ; 5 East, 220; Pierson v. Dun- 
lop, Cowp. 571. 

(rf) Bayley O. B. 78. Ann. 75. But it 
is no acceptance if the drawee apprize the 
party at tlic time that what he had written 
was no acceptance. 

(e) Per Ld. Kenyon, 1 Esp. C. 17. 

(/) Rees V. Wanoick, 2 B. & A. 113. 

(g) See the case of Jeune v. Ward, 

2 Starkie's C. 326; 1 Camp. 435; Bayley 



208 



BILLS OF exchange: primary liability. 



The acceptance of a bill of exchange imports a contract, which requires 
the auent of the party ; and acts of detention, disfiguring, cancellation, or 
even destruction, do not necessarily and conclusively proTe such assent, but 
are capable of explanation, by evidence of the usual course of dealing (k), 
and the conduct of the parties. 
Proof of Evidence is admissible to show that a bill with a cancelled acceptance 

acceptance upon it has been accepted by mistake (»). So proof may be given that a 
^ cheque has been cancelled by mistake, and it may be returned unpaid (k). 

By the custom of London, the drawee of a cheque coming through ano- 
ther banking-house, may retain it till five in the afternoon (Q ; but if a 
cheque be cancelled by mistake, it may be returned unpaid (m). 

Where the defendant's notice to produce, in an action on the bill, de- 
scribed the bill as accepted by the defendant, it was held that proof of the 
attorney's hand-writing to the notice was sufficient primd facie evidence of 
acceptance (n). 
3dly. The performance of conditions precedent : — 
Conditiooal Whether an acceptance be absolute or conditional is a question of law (o). 
acceptance. Where it is conditional, the plaintiff must allege that the condition has been 
performed ; as, where the condition is that a house shall be given up to 
the acceptor on a day specified (^); or if the condition has not been x>er- 
formed, a legal excuse must be averred (q) and proved accordingly ; and 



O. B. 81 ; Mason y. Bofff, 2 B. & A. 26. 
One who without authority accepts a bUl 
as by procuration, is guilty of a fraud in 
law. PolhUl y. Walter, 3 B. & Ad. 114 ; 
bat is not liable as acceptor. 

(h) Mason v. Batff, 2 B. ^ A. 26. 
Where the usage was to return the bills 
accepted, provided the goods had been de- 
liyerad and the carrier's receipt sent, and 
the parties had made a second application 
to have the bill accepted which they had 
before sent, and an answer was returned 
that the invoice had not been received, but 
was expected shortly, the Court held that 
they could not afterwards treat the deten- 
tion of the bill as an acceptance. Where 
a bill was drawn on the deiSendant, an exe- 
cutor, by a minor, to whom a legacy was 
to be paid by the defendant in a few days, 
and the bill being left at the executor's fbr 
acceptance, he detained it for a considerable 
time, and afterwards, destroyed it. Lord 
Ellenborough ruled that the detention and 
destruction of the bill amounted to an ac- 
ceptance; but the Court of K. B. (Ld. 
EllenboToagh distent,) afterwards, on a 
motion to set aside the verdict, held, that 
inasmuch as it appeared from the plain- 
tiff's conduct that he did nSt rely upon the 
detention of the bill as an acceptance, but 
had used other means to intercept the 
money, the defendant could not be con- 
sidered to be liable as an acceptor. Jeune 
y. Ward, 2 Starkie's C. 326 ; 1 B. &. A. 
653. Where the writing on the bill re- 
turned by the drawee is illegible, it has 
been doubted whether it should be de- 
clared on as an accepted or defaced bill. 
Bayley O. B. 88, 89. Trimmer y. Oddie, 
Ibid. Paton v. Winter, 1 Taunt. 420. And 



Bee!nk0m/(my.2>iei^4£8p.27O; Marius, 
29,30; JBentinckT.J)orrien,6BABt,lQ9; 
Harvey v. Martin, I Camp. 425, n. 

(t) Bentinck v. Borrien, 6 East, 199, 
semble. And see Bayley O. B. 88, 89; 
Jeune v. Ward, 2 Starkie's C. 326 ; Paton 
V. Winter, 1 Taunt 420, 3; Baper v. 
Birkbeck, 15 East, 17; Fernandez v. 
Olffnn, 1 Camp. 426, n. contra, ; Thorn" 
ton v. Bick, 4 Esp. C. 270; Tiimmer v. 
Oddie, Bayley O. B. 88. In Cox v. Troy, 
5 B. & A. 474, the Court held that a 
drawer might erase his acceptance previous 
to any communication of his acceptance of 
tiiebill. 

(A) Fernofwfezy.G/yfisi,! Camp. 426,0. 

(0 1 Camp. 426, n. ; Str. 415, 416. 550. 

(m) 1 Camp. 425; Bayley, O. B. 81, n. 

(fi) Holt v. Squire, 1 By. k, H. 282. 

(o) Sproat y. Matthews, 1 T. R. 182. 
Where A,, the Joint consignee of goods in 
London, on being applied to aceept a bill 
for the amount, refused to accept, because 
he did not know whether the ship would 
arrive at London or Bristol ; on which B., 
the holder, agreed to leave it, reserving the 
liberty of protesting fo case A, did not ac- 
eept; and on a second application A, said 
he would accept the bill even if the ship 
were lost; held, that this was a conditional 
acceptance, depending on two events, the 
ship's arrival in London, or bdng lost ; and 
that B. having the liberty of refosing snch 
conditional acceptance, could not after- 
wards note the bill for noI^•ecceptance. 

(p) See Swan v. Cox, I Marsh, 176. 

(q) Zeeson v. Piqott, Bayley, O. B. 187, 
Bowet V. Howe, 6 Taunt 30. 



PAYEE V. ACCEPTOR : — COKDITIOKAL ACCEPTANCB. 209 

matter of excuse cannot be proved under an allegatibn of presentment (r), Conditional 
or that the event has happened upon which it is to become absolute (*). acceptance. 

The payee or other holder of a bill may consider a qualified acceptance 
as a nullity, and cause the bill to be noted ; but if he note for non-accept- 
ance he is precluded from afterwards insisting upon the transaction as an 
acceptance (/)• 

Where the purchaser of goods requested A. to accept a bill drawn in favour 
of the seller, and to draw on B. for the ampunt, and A. accordingly drew 
upon B, for the amount, and B, refused to accept the bill, it was held that 
the drawing the bill by A, upon B. did not amount to an acceptance by A. 
of the former bill, since he did not mean to make himself liable unless the 
bill he drew was accepted and paid (u). 

The date written above the acceptor's signature upon a bill payable after 
sight is primd/acie evidence of the time of acceptance, although the date be 
in a different hand-writing ; for it is usual for a clerk to write upon the bill 
the word ** accepted," and the date, *and for the drawee to write his name 
under the date (v). 

In the case of Rowe v. Young, in the House of Lords, where a bill of 
exchange was specially accepted, payable at a particular place, proof of 
presentment there was held to be essential, though no place of payment was 
mentioned in the body of the bill (10). 

But by the stat. 1 & 2 Geo. 4, c. 78, from and after the 1st day of August 
1821, if a person shall accept a bill (x) payable at the house of a banker, or 
other place, without further expression in his acceptance, it shall be taken 
to be a general acceptance; but if the acceptor shall in his acceptance 
(which by sec. 2 must be in writing on the back of the bill) express that he 
accepts it at a banker's house or other place only, and not otherwise or 
elsewhere, such acceptance shall be taken to be a qualified acceptance of 
such bill, and the acceptor shall not be liable to pay the said bill, except in 
default of payment, when such payment shall have been first duly demanded 
at such banker's house or other place. 

Under this statute, where a bill was accepted payable at a banker's, with- 
out exclusive words, the acceptor was not discharged by the omission to 
present it there, though the banker failed in the meantime (^) ; and it has 
been held, subsequently to the above statute, that though a place of pay- 
ment be mentioned in the body of a bill of exchange, as where the bill is 
drawn payable to the drawer's order in London, no proof of presentment 
is necessary (z). 

If a promissory note be made payable at a particular place, presentment 
there is still necessary (a). 

(r) Ibid. (to) 2 B. & B. 165. 

(*) Bayley, O. B. 44, n. c. Sproat v. (*) ^ bill drawn in Ireland upon a person 

Matthewt, 1 T. B. 182. Mamm v. Hunt, *? Enrfand is not an inland bill, and may 

Doug. 299. Smith v. Abbott, Str. 1162. therefore be accepted without writing on 

Jtilian V. Shobrooke, 2 Wilson, 9. Pieraon *^^^ "11, notwithstanding the above sta- 

v.I>iml0p,Cowp.571. Where the drawee *"*«. Rat that section, as well as 9 Geo. 4, 

of a bill on account of a caigo consigned «• **> «• ®> appHes to bills drawn in Ireland 

to him, says it will not be accepted till the "PO" persons there. Mahoney v. Aahlin, 

ship with the wheat arrives; upon ar* 2B.&Ad. 478. 

rival, it is an absolute acceptance. MUm (y) ?»«»«• y Hoyden, 4 B. & C. 1 . 

?. Prut, 4 Camp. 898. W ^^^y^^l', ^»»f » 6 B. & C 631. Selhtj 

(0 i^enfinc* V. 2>orri«,, e East, 199, JV?t^' L®^* "' Oibb v, Mather, 



200. 



(a) SanderBon y. Judge, 2 H. B. 609. 
imtei 

ton \ 

VOL. II, P 



(«) Smith V. Niaten, 1 T. a 289. Jamieson v. Bowes, 14 East,oOO, (a). Dtdk- 

(v) Olottop Y, Jacob, 4 Camp. 227. enaon ▼. Bowet, 16 East, 110. Previous to 



Identity of 
payee. 



310 BILLB OF BXCHANGB: PBIMABV UABILITT. 

If a note be made payable at a particular house, a demand there Ib « 
demand upon the maker (a). 

4thly. Where a bill it drawn with the payee's name in blanks and the 
plaintiff inserts his own name as payee, he must adduea evidenee to show 
that he was intended as the payee (6). 

If a note be payable to A, in trust for JB., A. is the legal owner, and may 
sue upon the bill (e). 

Where a note or bill is payable to the heecrer, or where it has been indorsed 
in blank, the mere possession of the bill or note is prhnd/ade eridence of 
the property in it (d). 

Proof of a promissory note payable to A, B.^ generally, is primd/ixcie 
evidence of a promise to A, B, the father, and not to A, B, the son, their 
names being the same; but A,B. the son, although described in the declara* 



the d^ision in Bcwe y. Youngs S B. 5c B. 
105, in the House of Lords, where no place 
of payment was specified on a bill of ex- 
^aage, a Sfttcial aeeeptanee of the bill, 
BiakUig it payable at a particular place, 
was regarded by the Court of K. B. as a 
mere memoranduBi kiaerteil for tbc parpose 
of apprizing the holder where he might 
apply for his money, and not as a condition 
restricting the general liability of the ac- 
ceptor. FtntanY,OouMdryjl3EMBif4JBO; 
% Camp. 066L J^fon m. Suidiu^, 1 Camp. 
423. But the contrary had been decided 
in the Common Pleas, Ambrote y. ffop- 
woodf 2Tami 1 01 , aad CaMtighan y. AyUti, 
2 Camp. B. 649 ; wbeie it was held, that in 
case of a special acceptance, a presentment 
at the particular place was necessary. See 
J?i#aRy.J5U«t, Bay.O. B.98. 8eealM» 
SoMiUntm y. Jtaocfi 14 Bast, fiOO; Bay. 
O. B. 96 ; Sanderton r. Judge, 2 H. B. 509. 
In Oammon y. SehmoU, 5 Taunt. 344; 
1 Marsh. M^ II was held, that if a diawee 
accept a bill payable at a partUmlar plao^ 
the holder is not bound to receiye it, bat 
may resort to the drawee, as in case of 
noift-accepSaaoc ; bnt that If the hoMer 
accept it, the acceptance intaryosaa a coi^ 
dition precedent 

Where the bill or note h payable at a 
particular place, a presentment and de- 
mand muat he aUeged, ualet* a disehaitge 
be shown on the ikce of the declaration. 
Bowes v. Howe, 5 Taunt. 30. And an 
allegation that the makers of a neta h^d 
become insolvent, and had ceased, and 
wholly declined and refused to pay at thft 
place specified any of their notes, doea noli 
show a discharge of presentment and d«^ 
mand. Ibid. 34. But see Bow^ y. Mov^u 
16 East, U2; where it was held, that if 
the makers had become insolvent,, and shut 
up and abandoned their shop, it waa eyi<» 
deuce of a declaration to all the world of 
their refusal to pay their notes there. 

A promissory note, promising to pay so 
much at the defendant's banking-honse^ 
Buut be presented there. JHckmwm y. 
Botoet, 16 East, 110. By the acceptance 
of the bill the djuwee recognizes and ad^^ 



* the phuse of payment specified in the bill* 
Qray y. 3£Uner, 3 Moore, 90. 

(a) Saundenon y. Judge, 2 H. B. 509. 
In an action against the maker of a note 
payable at GuUdfinrd, a presentmsDt at m 
baaking*hoase at Qnildford is a piesent^ 
ment to the defendant, although he lived in 
London. Hardy v. Woodroqfey 2 Starkie'S 
C 319. Netfee to tie aeocptor is anaeoes- 
sary, even althoogh the banker at wfaoea 
house the note is payable has effects of the 
acceptor in his hmids. Smith y. T^tcher, 
4BLl^A.20a 2VeacAsr y. Jnnftm, 4 B. 
&A.413. JStfipaniry.2Hdl»4B.&A.2l2. 
So in an action by the drawer against the 
acceptor of a bill pajrable at a banker^, 
prescatneal tfasps la wmeeessaxyv snd lii» 
omisskm to present aflbrda no defence> 
Bhodet v. Oent, 5 B. & A. 244. Tlie ac- 
ceptors of a fbreign bill of exchange, who, 
aftsr piessotmeal to the d w w wos Ibr ae- 
ceplaM^ and a refiisal by them taaeoept, 
and protest for non-a^eptance^ accept the 
same for the honour of the first Indorsers, 
are aol liable on sock aocq»taiice nalesa 
there has been a presentment of the biU to 
the drawees for payment, and a protest for 
non-payment fioore y. Coxenooe, 16 East. 

aftL 

(h) Crutchley y. Mam, 1 Maesh^ 29i, 
And held, that a letter from the acceptor, 
promising to accept the bill, with the ad- 
dress ton oi^ was not eviiLBaee to preye 
the fact. (Ibid.) And held also, that the 
letter, had it been efficient, would haye 
ssqeked a stamp. And see Pmtldn^ y. 
Hmwkshaw, 2 8taddiy8.C. 239; Bi IT. R 
171 ; MyddBUtm v. 8tmJfitrd, 4 Camp. 
M. Ceo^t^T.^PkiSienf, IC.ft 11.739; 
BtdhOy^BvM^^^'A.UC.^^l Roach 
%. Outtler, 1 Jfaik & R 120. 

(c) Smith y. JCendai^ 1 Bsp. C. 231 ; 
97. R. 112. JRMmr y. Crom/iin^on, Carth. 
5;2Show.507; 2yent.3e9; 9Kinner,204. 

{d) Per ]>>rd MansfieM, Doug. 632; 
Bayley, 116; Chitty, 276. 269. King y^ 
MiiMom, 2 Camp. 5. See 2 Saond. 47. 
J9tocMim*s Ohm, 1 SaHu 290. . ^rf o ^e ii 
y. ifeif^aeffl^iTvml, 1X5;^ UVea 48k 



^AYEB t: ACCtPtOtt : TAtltANCE — PRIMARY LIABILITY. 911 

iioh M A. jB, tbe foimg^r, bringlD^ ih^ aciidn, and being in possession of 
me bofBf ih entitled to recover npon it (e)i 

If a payee annex a condition to his indorsement before acceptancft^ the 
di<ttWee who afterwards accepts the bill id bonfad by the condition ; and if 
the eo&dition be hot performed, the right df action reyerts tb the payee, and 
h» may ft00V«r a^hst thd acceptor (f)i 

A bill payable to the ordet ^A.} H pflyabid to it. if h« tatkke h6 order, 
and none i« to bd p^stim^d (g)* 

A promise to p&y the aitaotlfit of a biil^ tfi p(tri-pfr^zfl£lht of it^ is An Adtiiis- AdmitFioo*. 
skm Df the acceptance (A). An Mikna^lMpn^tn by OA^ tff si^dMl Adceptorsy 
of his own liability, is not evidendtf ftgaiftdl the r«st (t) ; btit it is of his own, 
allhoiigh made during a treaty fyr negotiation (k). Although th^ defi^ndant 
oh being applied to for i^ajmieht, bht without Meiflg the bill^ desired thii 
bolder of the bill to call again, it was held that he ^ght itill prove thkt his 
aeoeptaMce had been fei^d ; bat oh pfotrf thM he hud bh fbtmet batMkniB 
fm6 sef 6rhl simllAr bills drawn by the same pefHotif Tayh^, tipon Which,* 
Taglor^ who n^di connected With the defehdAnt iil bnsifle^sy had, it Was sU[)« 
posiad^ written the defehdahf s name^ it wk9 held Ami tlw defendant had 
adopted ike acceptance/ and wds liable oh the bill (f). 

II the aec^tAnee of a blH appear on thd face of it to hAre beeri cMMSelled^ 
the pktitiliff may still show that it was Cancelled by nristake (m); 

Before the bill is read the defendant timy objeef the ^ant tf A prop^f Stomp. 
stamp (ft); or thmt th6 itote 6r bill appears to have been cancelled, so as to 
throw wpon th« plaintiff liie burthen of giving evidence in explanation ^ as^ 
%9 show thai the' aippaitot cstncellation was accidentAl, or r^salted irom 
mistake (o). The defendant cAnnot insisH on reading aii indorsemenl upOfl 
the note^ which i# no part of the note itself (ji) ; and a witAess ^sailed to pitotH 
the hand-Writing of a maker of a note cannot be eros^^slftmined at to dtf 
indorsement to which there is aft att(Miiig witness {q), 

III general, an allegation descriptive of the \AYi must be p^eeisely proved, Varlaoce. 
becsanee a variance shows that the instruhient produced is a different ovitf 

frem that declared on ; bnt it is snfikient if an arverm^At, according to thef 
substance and effect, be substantially proved (r). 

Where a bill or note a^poasrs to have' b0eA altered^ if lids onf the pArty pro- 
dacing it to show l^at the alteration was noi improp^l^ ihade (#). 



(«) Swiettnff V. FewUTy 1 Starkie's C. 

loa 

(/) iohetUony.KeTmngtcnyiThiaii. 
90. 
Uf) Smith V. M'Clure, b East, 47a 
(a) Jones T. Morgan, 2 Camp. 474. 

(i) 3 T. R. OlS; 8 Esp. G. 60; 4Esp. 
C. 220; Doa^. 661; 1 Esp. C< 1S5 ; 
B. N. P. 275; Str. 640. 10»1 ; 12 Med. 
309. 

iH) 1 Esp. C. 148; B. 9. P. 280; Vidtf 
il^firmf PABeUMPTIVB EVtAAWOB. 

(0 J9«n%ief t. 0infftny 9 Esp. C. 60; 

(ni^ Bap& V. J^irJUbeck, 15 East, 17. 
And see below, Alteratiok, &c. 

JO' See tit StAiTP. 
See Haper v. Birkbeeky 15 East, 11 y 
see 2nd. tit. Cancbllatiok. As to 
tbe fpiestion whether a drawee can cancel 
nis acceptance before re-delivrry, see JSmtr 
ttncA V. Dcrnen, East, 199. 



(p) Stone V. MeteaJtff 1 Starkie's C. 53. 

iq) Ibid, 

(r) See tit. VARiAifCB. And see tlie 
late Stat. Where the declaration alleged 
a special acceptance, payable At S certain 
place, '' and not elsewhere," which lattef 
words were not On the bill ; it was held to 
be an aUegation of a special acceptance, 
and the variance fatal, bot that the ^eriff 
was bound to have allowed the record to be 
amended as to such variance* and a dew 
tlial was granted. Biggins v. NichoU, 7 
Dowl. (p. c.)551. 

(«) Henman v. Dickensonyb Bing. 188. 
Where it was left to the faiy to say, from 
the nature of a biotappearing on the aitera- 
tion, whether the alteration was made at 
the time of making the note, and the jary 
finding, that it was so made, the Court 
#re<ted a nonsnit to be entered. Knight 
t, Clements, Q. B. T. 7. 1808. ftoscoe oq 
Ev.2bl. 
r2 



212 



BILLS OP SXCaANQE : PRIMARY LIABILITY. 



Ib dat«. In the case of a note payable by instalments, where the days of payment 

are described in the declaration, a variance in one of the days of payment is 

fatal (0. 

If the bill be alleged to hare been made on the 8d, and the bill produced 
bear date on the 6th, the variance is not material ; and it is unnecessary to 
prove that the bill was really made on the 8d (u). But a variance from 
the date of the bill, as alleged in the declaration, is fatal {x). 
In namM. ^ variance as to the names of parties is fatal, where the allegation ope- 
rates as a description of the bill; but otherwise, as it seems, where it 
merely relates to the names of the parties to the action, who might have 
pleaded the misnomer in abatement, provided the identity be proved (y). 
Where a bill was alleged to have been drawn by Crouch^ (no party to the 
action,) and the bill itself appeared to have been drawn by Couehj the vari- 
ance was held to be fatal (x). And where in an action against three as the 
makers of a note, the declaration alleged it to have been made by William 
Austin, Robert Strobell, and William ShutUff, of whom, the two latter were 
outlawed in the action, and the bill, on the trial against the third, appeared 
to have been drawn by William Austin, Samuel Strobell, and William Shtrt- 
Uffj the variance was held to be fatal. In this case no evidence was given 
to prove the identity of the parties (a). But where the declaration was 
against Thoma» Bay and others, as the joint makers of a note, and Thomas 
Ray suffered judgment by default, and the note was proved to have been 
signed by J. Hodgson for Rowes, J. Hodgson, J2ay &Co., and the real name 
of the partner was John Bey^ it was objected that Thomas Ray the party- 
sued was not a partner ; but proof being given that John Rey, the party 
intended to be sued, had actually been served with process, and was a co- 
partner with the other defendants, the variance in the christian names was 
held to be immaterial, and the variance in the surnames Ray and Rey was 
held to be immaterial, their pronunciation being similar (6). 

Where an action was brought by Willis, as the payee of a note, and on 
production the note was payable to Willisim, evidence was admitted on the 
part of the plaintiff to show that she was the party really meant, and to 
explain the mistake (c). 

Where a bill is drawn with the payee's name in blank, and it is stated in 
the declaration that A. B, (a bond fide holder, who has inserted his own 
name) was the payee, it is no variance (d). 

A declaration, alleging a note to have been made by A. and B, is not 
satisfied by evidence of a note given by A, alone, to secure a partnership 



(f ) WeUs Y. Oirlmg, 3 Moore, 79 ; 1 
Qow. 21. 

(u) 1 Camp. 907. Aad see Pamncre r. 
Northy IS Rest, 617, where the oote was 
iMued and lodoned by the payee, who died 
before the day of the date. 

(ar) Coxony, Lyon, 2Cvnp.dO%;V\tz.l90, 

(y ) See tit. Variancb ; and see Bough' 
ton ▼. Frere^ 8 Camp. 29. Mayor y^, qf 
Stafford r. Bolton, 1 B. & P. 40. Jowett 
?. Chamoek, 6 M. 3c S. 46. The general 
rule seems to be, that if the identity of the 
parties be proved, a vartane^in tlieir names 
is immaterial. A description of the plain- 
tiffs as executors and tnistees of A. B. is 
mere surplusage, the bill being payable to 
them is the oama of a flrai which they had 



assumed. Aguttar ▼. ilfoie#, 2 Starkle's 

\^» 4lnl. 

(2) Whitv>air.BennettySB.kP,6S9, 
(a) Gordon v. Autiin, 4 T. R. 611. 
(6) Biekenson t. Bowe$, 16 Bast, 110. 

(c) WilUs V. Barretty 2 Starkle's C. 
28. Note, the declaration alleged a pro- 
mise to pay Willis by the nameof WUlison. 
As to the admissibility of parol evidence 
to remove a latent ambiguity, see tit. 
Pahol Eyidbncb. 

(d) Atwood V. Chifflny R. & M. 426. 
A variance between the real name of a 
payee and indorser, and that alleged in the 
declaration, and which appears on the bill, 
if immaterial. Forman v. Jacob. 1 Star- 
kie's C. 47. 



PAYBC !?. ACrCPtOR T 



21 S 



debt(e); but it would be otherwise if ^. had prefixed to his signature, lo partlef 
" for A. and JB." (/). Proof that others joined with the defendants in ^ **"« *>*^- 
drawing, accepting, or indorsing the bill, is immaterial under the general 
issue, but is pleadable in abatement (<;). 

An undertaking to provide for the acceptance of a bill is not a promissory 
note (A). 

An allegation that a bill is payable to A,^ is proved by a bill payable to 
the order of il«(i). 

If a bill be made payable at a particular place, it is a variance to state 
it without that qualification (A). 

But it is no variance when the place of payment is merely mentioned at 
the foot of the note if). And in such case it has been held^ that an allega- 
tion of being payable there was a variance (m). 

It is essential that the biU read in evidence should agree in legal effect^ In legal 
as well as in words, with that specified in the declaration ) and therefore, ^^^^ 
where the bill proved was drawn in Dublin for payment in currency, but 
there was nothing in the declaration to show that Irish currency was meant, 
the variance was held to be fatal (n). The omission of the word sterling is 
immaterial (o). A memorandum indorsed on a note after it has been 
signed, stating it to have been given on a condition mentioned in an agree- 
ment referred to in the memorandum, is a mere ear-marking of the note, 
and does not incorporate the agreement (jp). Where the variance arises in 
consequence of any artifice in framing the bill, as by the introduction of 
some words in small characters, or by the use of illegible marks {q) for the 
purpose of deceit, the variance is also immaterial (r). 

Where the declaration was on a bill of exchange, and the instrument 
given in evidence contained the word at, inserted before the drawee^s name, 
it was held that it was no variance (s). 

An allegation that the defendant made the note, ^^ his own proper hand- 
writing being thereunto subscribed," may be rejected as surplusage, and 
proof that it was made by another with his authority is sufficient {t). 

Where the declaration stated the making and acceptance, and it appeared 
that the acceptance had been written before the bill was drawn, it was held 
to be no variance (u). 

An allegation that the bill was ^directed to the defendant is not supported Dirsctioa. 
by proof of a bill drawn payable to the drawer's order at a certain place 
named, although the defendant, when it was presented there, wrote his name 
upon it as the acceptor (x). 



{e) 2 Camp. 308; 16 East, 7. 

(/) 1 Camp. 403. 

(^) Mountttephen v. Bnooke, 1 B. & A. 
334. And see Richards v. Heathery 1 B. 
& A. 29; and £vani v. Lewit, 1 WUL 
Saiiiid. 201, d, n. 

(A) Peake's C. 24. 

(i) Smith V. Maelure^b East, 476. 

(A) Baylqy on Bills, 310. Roche v. 
CainpM/, 3 Camp. 247. Hodge \, FUlis^ 
3 Camp. 463. 

(/) WiUimnM v. WaHng, 10 B. & C. 2. 
Price V. Mitchell, 4 Camp. 200. Where 
the memorandum at the loot of the note 
was printed, Ld. BUenborough considered 
the place to be part of the contract. Treco- 
thick V. Edwin, 1 Starkie's C. 468. 

(m) Ejton V. Ruesel, 4 M. A: S. 58.5. 
But iec Sproicle v. Legge, 3 Sturkic's C. 



157. Hardyy, Woodroqfe,2Bt&rkiB*uC. 31^ 

(n) Kearney v. King, 2 B. & A. 301. 
Sprowle V. Legge, 1 B. & C 18. 

(o) Ibid. 

(p) Brill V. Criche, 1 M. & W. 232. 

(q) Allan v. Mawton, 4 Camp. 116. 

(r) Where the word at was inserted 
before the drawer's name, the instrument 
was held to have been properly described 
as a bill of exchange. Skuttleworth ▼. 
Stevens, 1 Camp. 402. And see JSkUs ▼. 
^ur^, 6 B.&C. 433. 

(s) Dougl. 651 ; and see note (r). 

(t) Booth V. Grooe, 1 Mood. 6c M. 182, 
and 3 C. & P. 336. This was formerly 
doubted. 2 Camp. 305. 

(u) MoUoy V. Delves, 7 Bing. 428 ; 4 C. 
jc P. 402. 

(.1) Graif V. MUner, 2 Starkic's C. 306. 
p3 



314 



BILLS OF bxohavgb: pbim^ry liability. 



Vfriano^ 



Consideim- 
tion. 



Delivery. 



Indorse- 
ments. 



Present- 
ment. 



Indorsee 
r. maker 
or acceptor. 



In an action against the acceptor on a bill diveoted to bioiy or, in kit 
f^bs^nce, to J. S., the conditional direction need pot b« stated (y). 

Where the allegation was, that the bill was for valae r^eeufed in leatheri 
and the evidence was that it was for value delivered in leatheri it was held 
tfi be no variance (z) ; but if the bill be drawn in the usual form for value 
received (which means by the drawer), and the declaration allege it at 
value received by the drawee, the variance is material (a). 

It seems that an allegation of the delivery of the bill to th^ jMLyee may 
b^ rejected as surplusage (6). 

If the acceptance of the bill be unnecessarily alleged )n an aetion against 
fhe drawer, it need not be proved (0). 

Where the writing of the drawee upon the bill U not legible, it baa 
been doubted whether it is to be considered a« aA %co»epted or as a de&iced 
bill («0. 

Indorsements unnecessarily alleged muft b^ proyed (^). If tha?e be no 
date to the indorsementy a variance fr^m the allegation that the biU waa 
indorsed before it because due will not be material (/). 

Upon a declaration against B. as an indorser of the bills it appeared in 
evidence that the bill had been indorsed to B, in blank, and that £. vithn 
QUt writing his own name, had conyerted t)ie blank indorsement into a 
special indorsement to the plainti0> and it was held that B* was not liaUa 
as indorser (g). 

In the case of a general aoceptancej it is not necessary to allege of pvova 
a presentment (A). 

Although the declaration allege a presentment by a person specified, i% 
ia sufficient to prove a presentment by another (t)< A variance as to the 
time of presentment and acceptance is not material, eyen although the bill 
be payable after sight (k). 

If presentment be alleged t» have been made when the biU was due and 
payable, the day alleged under a vukUcei will not be material, although it 
be on a Sunday (Q. 

The wdars^ of a note o? bill, in an action against the maker ok acoeptor, 
must prove, Ist, the wmJdag of the note, or the drauamg and aoo g ytoi ic e of 



(y) 10 Mod. 4i7. Bayley oa BUls, 800. 

(z) Bayley, Q. B. 16, n. JimH ▼. Man,^ 
2 Camp. 905. 

(o) Higkmare v. Primro$e, 5 M. & 8. 
65. Priddy v. Henbrey, 1 B. & C. 675. 

(b) Smith V. Maclure, 5 East, 476: 
9 T. R. 506. 

(c) TasiMf V. Jko», 4 B Jc C. aia. 

(d) Bayk^, a B. 86; Chitty, 804, n. 
9; 6 East,199i lTannt.490. 

(e) Waifnam v. Bend, 1 Camp. 175; 
J7. V. Stevensy 5 East, 244. WUliamton 
V. Allison, 2 £a8tj( 446. Peppin v. SoUh 
vum, 5 T. R. 406. 

(/) Young v. Wright, 1 Campu 130. 

{g) Vimmt v. Hurlock, 1 Camp. 442. 
Where a note contains in the body of It, 
and not merely in a memorandam at the 
foot, a promise to pay at a particular 
place, a presentment at sach place most 
be proved, bnt notioe of diabonour to the 
maker is unnecessary. Pearee v. Petttr 
hertky, 3 Camp. 261. A note payable at 



two places may be presented at either. 
BeeMng v. Qawer, Holt's G. 31.3. A 
promissory note being in the following 
form, ^ I promise to pay M, A, 2>., or 
bearer, on deo^aad, the sum of 102. oik 
9ight" a presentment for sight was held 
to be necessaiy. Bixon v. NuttaU, 1 C. 
M. & R. 307. Where a note is payable 
on demand, a demand need not be alleged 
or proved ; the action itself ia a demand. 
MwnbalU.Bua,l(^Uod.d^ 

{h) Turner v. Hoyden, 4 B. & C. ). 
Seeus, in case of a qaalifled acoeptanee. 
Rowe T. Young, 2 B. A; B. 165. Whei« an 
acceptanee, under the st. 1 ft 2 Geo. 4,, 
o. 7% Is general, and the holder neglects 
to present It, and the bankers kd\ with 
money of the acceptor's ia their haads, 
the aseeptor is not dischaiged. JkLmer 
V. Hoyden, 4 B. & C. 1. 

(t) Boehm ▼. Can^bell, 1 Gow's C. 56. 
Bolton y. JDugdale, 4 B. & Ad. 619. 

(k) Forman y. Jacob, 1 Starkie's C. 46. 

(/> Bynner v. Muael, 1 Bhigh. 23. 



IKBOSSES V. ACCBPTOR* 



2t5 



the bill by the defendant Sdly, pretentment^ where necessary. These 
pTOofey and the effect of rariance, have been abready stated. 8dly, he 
mnst prove his own tUU to it by transfer; and 4thly9 in some instances, 
must show that he gave value for it 

ddly. His title to the bill. — In the first place, it tnust appear firom the Title by 
bin itself that it is a negotiable instrnment, which is a pure question of transfer. 
law (m) ; and next he must prove that the bill or note has been trans^ 
ferred to him. 

An indorsement is equivalent to a new drawing. If after a special in* 
dorsement, and before the special indorsee signs his name, the defendant 
indorses the bill, and then the special indorsee indorses it, he may sue the 
defendant, and no new stamp is requisite (n). 

Where the bill or note is not payable to the bearer, but to a particular Transfer by 
person, or to his order, an indorsement in writing made by that person, or indone- 
by his authority, is essential to the transfer ; and therefoi^, evidence of °^^°^ 
that person's hand-writing or of another person (a) proved to be his author- 
ized agent, is essential to prove the transfer (p). 



(m) d Bnrr. 1529. 1526. 1528 ; but see 
Cfrani v. Vaughan, Borr. 1516, where 
Lord Mansfield left this question to the 
jory. (VitLi^fra, tit Cubtoic.) A bUl 
or note payable on a contingency cannot 
be declared on as a negotiable instnunent 
RautsouUier v. Sartnncke, 7 T. ft 733. 
CoUU V. JEmmett, I H. B. 319. HiU v. 
Balfordj 2 B & P. 413. Blanckenhagen 
V. BlundeXl, 2 B. & A. 417. See Trier v. 
Bridgman, 2 East, 350; Carlos v. Fan* 
eourtf 6 T. K. 4d2; CoUhan v. Cookej 
Willes, 303. An instmment acknowledg- 
ing the receipt of an acceptance, and con- 
taining an undertaking to proride for it, ia 
not a promissory note, and requires a re- 
ceipt stamp. Scholeg v. Walstg, Peake's 
C. 24. See Williamsan v. Bennett, 2 
Gamp. C. 417 ; also Leeds v. Laneashire, 
2 Camp. 205, in the note.) If a note, be- 
fore it is signed, be indorsed with a me- 
morandnm that it shall be void on the 
happening of a contingent event, ft is not 
within the stat. 3 & 4 Ann. c. 0. Hartleg 
V. WiOdnsany 4 Camp. 127. Bnt a de- 
feasance indoned by the payee en the Iin 
stmment is no part of the contract, ooless 
proved to have been made at the same 
time. Stone y,Metealf,\^iKtk\esC.I^. 
Iprcfmise to pay, signed by two persons. 
Is a joint and several note. March v. 
"Ward, Peake's C. 130. A note payable to 
^. only, without the words, bearer or order, 
fs a valid note. Smith v. Kendal, I Bsp. 
C. 291 ; 6 T. B. 123. Bvrehett v. Slo^ 
cock, 2 Ld. Raym. 1545. Moor v. Paine, 
C.T. Hard. 288. A request to pay 15/. 
oat of half-pay which wfH become due in 
January, Is not a pTDmlssory note. Stevens 
V. Bin, 5 £sp. 247.) And see Evens v. 
tTfuEmodo^ I Wils. 262. Jenng r. Herle, 
2Ld. Baym. 1362; 1 Str. 501; 8 Mod. 
25. Josselgn v. Z*Aeier, Itt Mod. 204. 
316. 



(n) Penny v. Innes, 1 C. M. & ft. 430. 

Ip) An anthorlty to draw does not of 
itself import an authority to indorse bills, 
but is evidence to go to a jory. Prescoit 
V. Plinn, Blng. 19. Hiere the clerk at 
the payees had been accustomed to draw 
bills and cheques for them, and had been 
in one instance authorized to indorse a 
bill, and had in two other instances in- 
dorsed bills which had been d1se<mnted by 
the payees at their bankers, and the jury 
were held to be warranted in finding a 
general authority. 

(p) Skinn. 411; 1 Atk. 282; 2 Burr. 
074 ; 3 Bast, 482, infra, 163. A,, the 
Indorsee of a bill of exchange, indorses 
it <* pay to B., or bis order, for my use." 
^.'s banker discounts the bill for B,, and 
applies the proceeds for BJs use; the 
propert y in the bill remains in A., md he 
may maintain an action against the bankers 
for the amount. Sigoumey v. IJoyd^ 8 
B & C. 062. At to the transfer hi a fo* 
reign cuuutry of a bUl or note made ia 
England, see Chaumette v. The Bank of 
BngUsnd, 9 9, Sc C. 208. A Bank of 
Bn^and note is transfembie hi France 
under the stat 9 At 4 Anne, c. 0. Where 
a set of fordgn bills, drawn abroad, wers 
srat to the drawee, the defendant, who 
accepted two parts, and moofsed one to 
the plahitiif for value, prior to which the 
other had beeen indorsed by the defendant 
to hia felher eonditioBaUyy but who had 
never insisted on payment, 5nt gave it up 
on the substitution of other securities ; 
hefd that the plaintzflT was entitled fo re- 
cover; and per Tenteiden, L. C. J. and 
Parke, J., it would have been the same if 
the first part had been indoived and deln 
vered nnconditk>nally. Holdneorth v. 
Bunter, 16 B. & C. 440. So if a UH be 
dAnm and issued in blank as to the mtme 
of the payee, it may be filled up by a dortd 

r4 



216 



BILLS OF exchange: — PRIMARY LIABILITY. 



Where all the indorsements through which the plaintiff claims are 
special, they must all be alleged and proved by evidence of the hand- 
writing of the different indorsers, or of admissions on the part of the de- 
fendant (q). 

Where the first, or any subsequent indorsement, is made in blank, the 
indorsee may claim immediately under that indorsement, although after 
the blank indorsement there be one or more special indorsements (r). 
Where, however, the intermediate indorsements are alleged in the declara- 
tion, they must all be proved («), even although they were upon the \)ill at 
the time of acceptance (t). The hand-writing of the first indorser must be 
proved, although he was the drawer (u), and although his name was on 
the bill at the time of acceptance (r) ; and therefore the indorsee of a bill 
payable to a fictitious payee cannot recover against the acceptor, unless he 
can prove that the acceptor knew thai the payee was fictitious, or that the 
money found its way into his hands (2). 

Proof that the indorsement is in the hand-writing of another person of 
the same name with the payee is not sufiicient, for it is a forgery, and a 
title to the bill cannot be derived through the medium of forgery (y). 
Neither can an indorsee recover where it appears that the first indorsement 
/through which he must derive his title) was made upon an usurious con- 
sideration (2). But where the defendant accepted bills drawn in fictitious 
names, and it was shown that the hand-writing of the supposed drawer and 



Jide indorser with his own name, Crttch' 
ley V. Clarance, 2 M. & S. 90. Atiioood 
V. Or^Hy 1 Ry. & M. 425. Edie ▼. Eiut 
India Company, Burr. IS 16. A party 
to whom the bill is indorsed, for the pur- 
pose of procuring payment, may sue, al- 
though he is indebted to the indorsee, 
although no anthority be given to bring 
the action. Adams v. Oahet, 6 C. & P. 
70. Or the indorser may sue. Stovem v. 
BuU, 2 C. & M. 416. So an indorsee by 
way of gift may sue an acceptor for valae. 
Heydon v. 7^o//ipMm, 3 N. & M. 310. No 
indorsement is admitted by the accept- 
ance. Smith y. CTietter, 1 T. R, 664. 
Although the indorsement was on the bill 
at the time of the acceptance. JBosanquet 
y. Anderson, 6 Esp. C. 43. Where a bill 
is drawn and indorsed by procuration, the 
acceptance admits only the drawing, not 
the procuration. Robinson t. Yarrow, 
7 Taunt. 455. See Hankey v. WUson, 
ir^a, 219 (k); and see JBosanquet v. 
Anderson, 6 Esp. C. 43, where Lord 
Ellenborough held, that though a drawee 
accept a bill with many names upon it, 
they must be proved. 

( g) QeeSidford v. Chambers, 1 Starkie*s 
C. 326. 

(r) 1 B. & P. 658 ; 4 Bsp. C 210; 1 
£sp. C. 180. SmUh v. aarke, Peake, 
225; Bay. O. B. 48. But the interme- 
diate indorsements must either be proved 
or struck out, per Abbott, C. J. Cocks v. 
Borrodaile, Chitty, 302, 7th edit., citing 
the opinion of Bayley, J. Tlie indorse- 
mcnt:» may be atruck out after the bill has 



been put in evidence. Mayer v. JadiSy 1 
Mo. & R. 247. 

(#) 1 T. R. 654 ; Wayman v. Bend, 1 
Camp. 175. Botanquet v. Anderson, Q 
Esp. C. 43. 

(0 1 T. R. 654; 6 Esp. 43. In Jmtes 
V. Badford, 1 Camp. 83, Lord Ellen- 
borough is stated to have held, that an in- 
dorsement in such a case by one person, in 
the name of himself and a supposed part- 
ner, was evidence against the acceptor after 
the indorsement, to prove the partnership, 
which was disputed at the trial ; this, how- 
ever, cannot be supported without going the 
full length of contending that the accept- 
ance operates as an admission of the regu- 
larity of the indorsement altogether. See 
Carviek v. Viekery, Doug. 653. 

(ii) Macferson v. Thoytes, Peake's C. 
90; Doug. 650. 663. 

(v) 6 Esp. C. 43; 1 T. R. 654; Doug. 
630; Peake's C. 226; ST. R. 175, 176; 
4 T. R. 28. 

(x) I Camp. 130; 3 Bro. 238; Co. B. 
L. 184, 5; 1 H. B. 313. 569. 626; CuUen, 
98 ; Oibson v. Minet and another, 3 T. 
R. 481 ; 2 H. B. 187. 211. The plaintiff 
in such case may declare as on a bill pay- 
able to the bearer (3 T. R. 481 ; 1 H. B. 
569. 625; 2 H. B. 187. 211. 288. 298); 
or, semble, as on a bill payable to the 
order of the drawer, or on a count stating 
the special circumstances. Ibid, 

(y) Mead v. Young, 4 T. R. 28, by 
three Justices, Ld. Kenyon, C. J. dissenr 
tiente. 

(z) Loices V. Mazzaredo, 1 Starkic's 
C. 385. 



INDOR6EB V. ACCBPTOR : TUANSFER. 



217 



indoner were the same, it was held that such evidence was admissible, 
and that a party accepting, without inquiry as to the reality of the person 
drawing, must be considered as undertaking to pay to the signature of the 
person actually drawing the bills (a). 

An indorsement by a trader after his bankruptcy is good, if he has re- ladorse- 
ceived value (6). An accommodation bill, payable to the order of the ment by a 
drawer, does not pass to the assignees, and therefore an indorsement for ^^knipt. 
value after the bankruptcy will confer a right of action (c). Where the By an exe- 
bill was payable to a person deceased, the plaintiff may derive a title to it editor, 
by proof of an indorsement by his executor or administrator {d). Where 
the biU is payable to B, or order, for the use of C, and B, indorses to 2>, Tnutee. 
for value, 2>. may recover on the bill, since B. had the legal interest, and C. 
but an equitable interest in the bill (e). 

If the property in the bill vest in a feme sole, who marries, the plaintiff Proof of 
must prove an indorsement by the husband {/), even although the husband transfer, 
permit her to trade as a feme sole (ff) ; but where she indorses in the name ^"^^'^f^^ 
of the husband, the jury may, in some instances, presume, from the par- ^(f^^ 
ticular circumstances of the case, that she was the authorised agent of the 
husband {h) ; and where a note was made payable to Mrs. Carter, and she 
indorsed it in that name, and in an action by an indorsee against the maker, 
the latter proved that she was the wife of Cole, and it was proved that 
when the note was presented to the defendaat for payment, he had promised 
to pay it, it was left to the jury to presume, that the wife had authority 
from the husband to indorse the note in the name by which she was known to 
the world (i). Where the wife, by her husband's authority, signed and in- 
dorsed the bill in her own name, it was held sufficient to pass the interest 
in the bill to the indorsee, a bondjide holder (A). It is no defence to an bv an 
action against the acceptor, that an indorsement essential to the plaintiff's infiint. 
title was made by an infant 

An admission by an indorser of his indorsement, is not, it seems, evidence 
against the acceptor (m). 



( ) Cooper V. Meyer, 10 B. k C. 468. 

(h) SmUh Y. Pickering, Peake's C. 50. 
Where the bill is drawn payable to the 
order of a third person for ytdne received, it 
is no variance to allege that it was for value 
received of the drawer. Orant v. Da CoHa, 
3 M. & S. 851. Value received in leather 
for ynXiui delivered in leather is no vari- 
ance. Jonet V. Miirs, 2 Camp. 306. 
** Value received " in a note means value 
leoeived from the payee. Clayton v. Oo$- 
Itft, 5 B. & C. 860. Qu. as to the indorse- 
ment of a bOl by one partner after the bank- 
ruptcy of hit GO-partner. Banubottom v. 
Caior, 1 Btaricie's C. 228. 

(c) 1 Camp. 46 ; 3 East, 321 ; 12 East, 
656. 
(cQ 3 Wilson, 4. See tit Executor. 

(e) JSvant v. Cranlington, Carth. 5. See 
2 Vent 807. 

(/) Connor v. Martin, Str. 616; 3 
Wils. 5; Miles v. WUliami, 10 Mod. 243. 
And the husband may sue alone, without 
the wife's indorsement. ' M^Neilage- v. 
HoUoway, I 1). & A. 218. But »ee 



Bichardi v. Biehardi, 2 B. & Ad. 453. 
Where a promissory note Is made payable 
to a married woman, the husband alone 
may indorse. Mason v. Morgan. 2 Ad. 
& EU. 30. 

0;) Barlow v. Bishop,! East, 432. 

{h) Ibid. Vide supra, tit Aobkt. 

(t) Co^ef V. Davis, 1 Camp. 485. 

(*) JPrestwich v. Marshall,! Bing. 565 j 
see Cotes v. Davis, 1 Camp. C. 485. 

(0 Taylor \, Croker, 4 Esp. 187 ; Bay- 
ley O. B. 58; 2 B. &C. 209. Although 
he was the payee of the bill {Jones v. Darch 
and others, 4 Price, 300). Note, in that 
case the defendant knew that the payee, 
who had indorsed the bill before accept- 
ance, was an infant See Williams v. 
Harrison, Carth. 140. 

(m) Hemmings v. Bobinson, Barnes, 
436 ; Bay. O. B. 223. But see 2 Esp. C. 
647, 8. The signature of a party may, it 
has been said, be proved by an admission 
which would be evidence against the party 
who made it. 2 T. R. 613 ; 1 Esp. C. 60 ; 
4 £dp. C. 226. tamen qu* 



218 



BILLS OF BXCHANOE: PRIMARY LIABILITY. 



Special 
indorse- 
ment. 



By dell- 
very. 



Tnnsfisr. 



An averment that the payee by his indorsement directed the amount of 
the bill to be paid to A. B,, is satisfied by proof of an indorsement directing 
the payment to the order of A^ B,, for the payment to his order is in effect 
a payment to him (n) ; and, conversely^ an indorsement directing the pay*- 
ment to be made ix> A, B. may be alleged as a direction to pay to A. B, or 
order (o), since chat is the legal import of the indorsement. 

A special indorsement of a bill contains in itself an absolute transfer of a 
bill(p); but an indorsement in blank is mere pHmd facte evidence of 
transferee) ; and therefore if it. the payee of a bill, indorse it in blank, and 
B, get the bill accepted, A, may still maintain an action on the bill, for B. 
might act either as agent or assignee, and not having filled up the indorse- 
ment, and thereby made the bill payable to himelf, it is to be presumed that 
he acted as agent (r). 

Where the biU or note is payable to the bearer, or has been indorsed in 
blank, possession is prhnd/acie evidence of delivery («), and ownership (t). Con- 
sequently where several sue as the indorsees of a bill indorsed in blank, they 
are not bound to prove either that they are partners, or that the bill has been 
indorsed to them jointly (u); but where a bill specially indorsed to JT., was 
by his direction indorsed in blank, and delivered to X. ^ Co,, it was held 
that two of the firm of X. ^ Co, could not conjointly with a stranger support 
an action as indorsees of the bill, without some proof of transfer by X. 4* Oo. 
to the plaintiffs, either by indorsement or delivery (x). 

Where an indorsee of a bill recovered i^ainst a prior indorser (also an 
indorsee of the bill, who then brought an action against the acceptor, he 
was non-suited for want of a receipt for the money paid by him to the 
indorsee (jr); but it would have been sufficient to show that he had paid 
the money. 



(n) SmUh v. di'Clure, 6 East. 476. 
Fisher ^i. Ptm^^sty 12 Mo^ 125. 

(0) Aeheton v. Fountain^ Str. 657. 
Mare v. Manning^ Com. 311. Edie v. 
Bast India Company, 2 Burr. 1216. Bl. 
B.295. 

0»> PoOmt CotOratdm Ckange,Tmst L 
e* 2» 8. 23, 24. 

is) SmUhw.PidkenH^TaskB'^C. M 
Clarke v. Pigott, Salk. 126. IdU 

(r> Clarheyr.Pigott,&aXk,l20. 12 Hod. 
192. 

(«) Tile property in bills is not trans- 
fefred 1^ mere indorsement, without de- 
Uvary, which most be averred. B, v. 
Lambton and others, 6 Price, 442. 

(0 Ord y. Portal, 3 Gamp. 239. King 
V. MUsom, 2 Camp. 5. So if a bill be 
indorsed in blank to several^ one of 
whom dies, and the rest sue. Attwood 
▼. Battenhury, 6 Moore, 579. And 
see Bordasnz v. Zeach, 1 Starkie's C. 
446. MacheU v. Kinnsar, 1 Starlue's C. 
499. But where the bill is specially in- 
dorsed to a firm, 3 Camp. 240. Or where 
the plain tifik rae aa aaaignees of a bankrupt, 
Of in any other special capacity, they most 
prove an iadorsementinthateapMsity. Ber* 
mueoni v. Buhs qfArgyie, 3 C. &. P. 29. 

(ti) Ord V. PmiaA, 3 Camp; 239i 

(;r} MaehelL v. Minnmar, 1 Starkie's C. 
490. 



(y) Mendez v. Carreroon, Ld. Baym. 
742. Bat this was on proof of a custom 
amongst merehaats toprodnee areeeipt for 
the money so paid ; and Ld. Holt held that 
it would have been sufficient to prove tliat 
he had paid tiie money. In the above case 
(the record has been consulted) the plain- 
tiff did not declare on the biU as indorsee, 
but specially alleged his payneat of tha 
money to tl&e snbsequenl indorsee^ on the 
de&nlt of the acceptor. Where, however, 
an indorser has been ccmpelled by a sab» 
sequent indorsee to take up the bUl, ha 
SMy still sae as indorsee of the bill agakiat 
the prior parties.. SeeJDeaJthy.Servieeiierw, 
1 Lut. 836; and the obserfations of Law- 
rence, J. in CawUm v. Buntep^ 7 T. li 
571, who CQBsidered the pouit as seitkil 
by the case si Death v. SerwmiUrs, that 
the right to sue as indarser was not lost 
by indorsement, and tliat an indorser, on 
takhig up the bil^ was remUted to his 
former right to sue on the bill; and there- 
fore- tiiat if A. indorsed to B., and B, to 
C, and C ts J)., wfaa returned the biU to 
C, the latter might recover as iodorsae of 
the bill. And see Callow v. Zatorenee, 
8 M. & S. 97, and the case of Poumal v. 
Ferrand, h\fra, note (a). Where three 
persons, not partners in trade, had sepa* 
rately indorsed the bi]l for the accommo- 
dation of the drawer, and, on its being 



IllXM>BaBB r. ACCEPTOR : TBAySFBR. 219 

And an indoner who takes vp the lull from a subBequent indoTMa, is 
remitted to his fonner rights on the bill (m). It has even been held that an 
intermediate indoner who, on aetions brooght by a subsequent indorse 
against himself^ and also ag»ainst the aoceptor^ pays part of the amount to 
suoh iudoiaeoy may recover that sum against the aoeeptor as money paid to 
his use (a). 

80 if a party take up a bill fov the hononr of an indoner, he is entitled to 
sue aU the previous parties on the bill (b). 

Where a note vaa given by A.taB.ia seeure a debt, and was assigned by 
J9. to C. with directions not to negotiate it, as he shoiold want it for the 
purpose of 9ettHng with 4. ) it was held that C eovld 9M>t» after a aettUment 
)>etwe^n A. and fi^ and without a redeUrary Qf tha nQte» maxntate an action 
agaix^t4.(c}* 

Where the bill or nota ia payable to 4. and B., who are not partnere, tba 
indorsement of both ^lust be proved (60« 

An indorsement by one of several partners in the partnership name wUl By part- 
be sufficient, if the partnership be proved, for an authority may be implied {e), "®"' 
So if on^ partner traasfer in the name which he as managing partner ha9 
occasionally uscid for the purposes of the firm, although no privity on the 
part of his partners, be proved, and although the firm whose name U thua 
nsed no longer exists (/*). 

Where the plaintiff claimed through the indorsement of ^. S. the payee of 
the bill, and prpved, that a porson calling himself JB. S^ came to Cadiz, having 
the bill in his possession, and also a letter of introduction, proved to be 
'genuine, which purported to be given to a person introduced to the writer 
as E, S.y and also another bill of exchange drawn by the writer; and also^ 
that that person resided at Cadia ten da^s, during which time he visited the 
plaintiff, and indorsed the yil to him, and received a letter ofereditfrom 
him, it was held that this was evidence of identity, sufficient to warrant a 

verdict for the plaintiff (^V 

On the dissolution of a partnership, a power given to one of the partnen 
to receive aAd pay debts, does not authorize him to indorse a biH in the 
i^ame of the partnership {h), A partner b^Qming bankrupt eannot giva a 
title by indorsement (i). 

Evidence of an offer by tha defendant to give another bill supersedes the 
proof of an indorsement (AX 

disbonoared^had paid in equal portions the (^) BttUdey v. Butler ^ZB. S^ Q. 434* 

amooot to a party who had discounted it See JIfead y. V<n(r^4 T. R. ^. 

sabsequently to thei^ Indorsements ; held (h) Kitgifur y. ftnlysonf I 0. B. 1^ 

that they might strike ont their faictorse^ Sfee Xaetf v. Wookot, 2 D. 5; R. 418« 

ments, and proceed jointly as possepsors of (i) nomoion y. Firere, 10 East,^ 418% 

th« bill asainst a preyious indorser . Low. See Burt y. Moult^ | C. £c Si. 5^, 

y. Capegtake, 3 Carr. h P. C. 900. Brayton y. X>aU^ 2 B. & C 293. 

S Supra, note (y). (k) Buanquet v. Andenon^ 6 S0p« C« 
PownaU y. Fhrand^ <l B. ^ C.. 43; 1 T. R. 654; see Sitffird y. Chantr 
^SQ. berSf I Stirkie'» C. 839. Where bo proof 
(b) Mertent y. Winningttm^ 1 E^. C. va9 gtyea «( the haad^^Ktiting of oae of 
113. He holds as an Indorsee ibr value the indorsers, but it appeared that the 
from the party ybr whom (jaoXfrom whom) ind9fsement was on the bill when ^e de- 
he takes the bill. Barley on Billa^ fendant acccipt^ it» and that he promised 
146-8. to pay it, Ryder, C. J., left the case to the 
(e) 1 Bos. & Pall. 398. Jury,^ and the Court,^ after a yerdict foe 
{d) Carvickt y. Viekery^ Doug. 863; ffae ptaiptiif, refhsed a new trial. Hankey 
Bay. O. B. 66. v. Wihon, Say. 223 ; Bayley on Bills, 367. 
(e) Supra, 204. But where a biH was shown to the drawer^^ 
(/) WUliamaon y. Johtwmyl B. h C. with the name of the payee indorsed upon^ 
147 ; 2 D. & R. 281. it, and the dnwer merely objected for 



220 



filLLS OF EXCHANGE : SECONDARY LIABILITY. 



Proof of 
value. 



4thly. Value. — The holder of a bill indorsed in blank, or payable to bearer, 
is not prejudiced by a defect in the title without his knowledge, but he 
must in general, in such case, prove that he has given value for the bill ; 
and therefore it is no defence to an action on a bill or note to prove that it 
was lost by the owner, or stolen from him, provided the plaintiff can show 
that he gave a valuable consideration for it (Q. So if the bill has been ex- 
torted by duress, the plaintiff must prove that he gave some value for it (m). 
So where the bill has been obtained from the drawer by fraud (it) ; and 
though value were given, the defendant may defeat the holder's claim by 
proof that he had notice of the defect (o). 

It is, however, a question whether the plaintiff acted band fide in taking 
the-bill, and whether he acted with due and reasonable care and caution in 
doing so, where there are any circumstances sufficient to excite the suspi- 
cion of a prudent man (p). And though he gave value, the plaintiff cannot 
recover on a note, cheque or bill, which has been lost or stolen, if he take it 
after it has become due {q). 

Bankers who have given acceptances for a customer beyond the cash 
balance in their hands, hold all collateral securities for value (r), and may 
recover against an accommodation acceptor, although the customer who had 
previously deposited the bill with them had it in his hands when it became 
due, and had agreed to deliver it up for a valuable consideration, instead of 
which he redelivered it to the plaintiffs (s). So, although they had de- 
livered it to the payee when it became due to procure payment, and it 



woQt of consideration, it was held that it 
did not supersede the necessity of proving 
the indorser's hand-writing. Duncan v. 
Scatty ] Camp. 101. 

(0 MiUer v. Raee^ 1 Burr. 462. LatD- 
son V. Wettony 4 Esp. 66. Grant v. 
Vaughtmy 3 Borr. 1610; 1 Bl. R. 486; 
8 Show. 236; 3 Salk. 126; Ld. Baym. 738. 
Peacock y. Rhodes, Doug. 611. Pater^ 
son V. Hardaere, 4 Tannt. 114. So bank- 
notes cannot be followed by the legal 
owners into the hands of bonAfide holders 
for a valuable consideration without no- 
tice; and therefore where a trader, after 
bankruptcy and a commission^ procured 
bank-notes in exchange for bills, and by 
these bank-notes, through an agent un- 
known to the defendants (bankers), re- 
deemed a bill of exchange hi their hands, 
it was held that the assignees could not 
recover. Lowndes v. Anderson, 13 East, 
130. See also Solomons v. The Bank of 
Bnglandj 13 East, 135; and supra, tit 
Banxruftct. 

(m) Duncan v, Scott, 1 Camp. 100. 

(n) Rees v. Marquis of Headfort, 2 
Camp. 674. 

(o) See the cases above cited, note (2). 

(p) G^Zv.Cu^i^,3B.&C.466. Therea 
discount broker discounted a bill, (stolen the 
night before) from a person whose features 
he knew, but whose name was unknown. 
Where a trader received from a stranger, 
in part-paymentof goods, a bill which had 
been lost, the party paying it represent- 



ing to the trader that he had been recom- 
mended to him by a customer of his, and 
directing the goods to be sent to a place 
not a regular booking-office ; there was no 
evidence that the newspaper advertising 
the loss ever came under his view ; the 
Judge left it to the jury to say whether 
the bill was received out of the ordinary 
course of business, and under circum- 
stances which should have excited suspi- 
cion and inquiry; and they having found 
for the defendant, the acceptor, the Court, 
deeming it a case peculiarly for the eon* 
sideration of a jury, refused a new trial. 
Slater v. We^, 3 C. & P. 326. And see 
GW V. C^OnJtt, 1 C. & P. 163. 487. 

(9) Down V. HaXlvng, 4 B. & C. 330. 
A cheque on a banker, lost by accident, 
was paid to a shopkeeper for g^oods, in 
London, five days after the date; in an 
action by the owner against the shop- 
keeper, it was held, that it was for the 
Jury to say whether the defendant had 
taken the cheque under circumstances 
which ought to have excited the suspicion 
of a prudent man ; it was also held that 
the shopkeeper having taken the cheque 
five days after it was due, it was sufficient 
for the plaintiff to prove his property in 
' the cheque without showing how he lost 
it And see JEgan v. Threlfall, 6 D. & R. 
326 ; Beekwith v. Corrall, 3 Bing. 444. 

(r) Bosanquet v. Dudman, I Starkle's 
C. 1. 

(#) Ibid. 



PAYEE V. DRAWER. 



221 



remained in hig hands till his bankruptcy^ and then passed into the hands 
of his assignee (/). 

An acceptor could not, before the new rules, by mere notice to the plain- 
tiff, and without throwing suspicion on his title, compel him to prove 
vahe («). According; to the practice of the Court of Common Pleas, the 
defendant was required to give notice of his intention to call upon the 
plaintiff to prove l^at he gave value for the bill (x). In the King's Bench 
it was not necessary to give such notice, although it was usual and 
proper to do so (y). Whether such notice had or had not been given (z), 
the plaintiff, it seems, was not bound to enter upon proof of consideration 
as part of his original case, or until suspicion had been cast upon his 
title, either upon cross-examination of his witnesses (a), or by proof on 
the part of the defendant (b). 

An indorsee cannot recover against the acceptor, costs incurred by him 
in an action on the bill against him, there being no privity of contract 
between them (c). 

Secondly, where the liability is of a secondary and conditional nature, 
and is consequent upon the default of the maker of a note or acceptor of a 
bill, that is, where the action is brought, 

1st. By the payee against the drawer of a bill. 2dly. By an indorsee 
against the drawer or indorser of a bill, or against the indorser of a promis- 
sory note. 



Effect of 
notice to 
prove value. 



Secondary 
liability. 



Payee 
against the 
drawer. 



(0 Bruee v. Hurley^ 1 Starkie's C. S3. 

(ic) Reynoldt v. Chettle, 2 Camp. 606. 

(x) Patenon v. Hardaerej 4 Taunt. 
11. 

(y) In an action by an indonee against 
the acceptor of an accommodation-bill, 
no notice to dispute the consideration is 
neceisary. Mann v. I^ntf 1 Mo. & M. 
240. Wyatt v. CampbeUf 1 Mo. & M. 80. 
SembUf in all cases of no consideration 
given, the holder must prove value. lb. 
Skarpe v. BaUeytS B. & C. 44. In an action 
on a note which has been stolen, it is In- 
cumbent on the plaintiff to prove that he 
gave full value for it. J)e la Chaumettt 
V. The Bank of England^ 9 B. & C. 208. 
Nor can he recover if he had notice 
of the Act before he paid value. lb. 
And notice to a party who presents the 
note for payment, and to whom the note 
has been remitted by a foreign merchant 
for payment, is notice to the party, a 
foreign merchant, who remits it. lb. 
S, being indebted to a firm in which he 
was partner, gave a note in the name of 
another firm, in which he was also a part- 
ner, in discharge of his individual debt ; the 
payees indors^ it cryery and the indorsees 
sued the parties who appeared to be 
makers ; held that this note was made in 
fraud of SJt partner in the second firm, 
and could not be enforced against him by 
the payees, and that at all events, under 
these circumstances of suspicion, the in- 
dorsee could not recover without proving 
that he took the note for value, though no 
notice had been given him to prove the 
consideration. Held also, Parke, J. d{«- 
wnHstif #, that in all cases where, from de- 



fect of consideration, the original payee 
cannot recover on the note or bin, the in- 
dorsee, to maintain an action against the 
maker or acceptor, must prove considera- 
tion given by himself or prior indorsee, 
though he may have had no notice that 
such proof will be called for. Heath v. 
Samom, 2 B. & Ad. 291. 

(z) A contrary course was adopted by 
Ld. Ellenborough {Delauney v. Miiehell, 
1 Starkle's C. 430); but the later prac- 
tice appears to be more convenient, since 
it frequently happens that the defendant 
is unable to impeach the plaintiiTs title, 
and then the proof of consideration be- 
comes unnecessary. 

(a) Where notice had been given to 
prove the consideration given for a note, 
and a witness had been cross-examined in 
order to disprove the consideration, it was 
held that the plaintiff was bound to give 
evidence of consideration as part of his 
case in chief, and that he could not give 
such evidence hi reply. Whiiloekg v. 
Underwood^ 8 D. & R. 356. Dekmney 
V. MUcheU, 1 Starkle's C. 439. 

(6) Beynoldt v. Chettle, 2 Camp. fi06. 
Patenon v. Hardacre, 4 Taunt 114. 
H